Two separate claim forms for two separate PCNs Excel

Coupon-mad

Yes, you can see that by reading the POFA and seeing those two pre-requisites at the start of Schedule 4. Keeper liability is clearly dependent upon those basics.

Not just what the NTK looks like!

jerry2354

Hi, I've updated my defence (altered points in bold). I have also added a new point (9) but I feel its a bit tenuous and would appreciate your opinions on it. I've also shifted the order a bit so sorry if that makes things confusing. Thank you all so much for helping me out this far!

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 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.

5. 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.

6. The Protection of Freedoms Act (POFA) 2012, Schedule 4, at Paragraph 9(2)(f) states that the notice to keeper (NTK) must “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given, the creditor will have the right to recover from the keeper”. The date on which the notice is “given” is defined as, “on the second working day after the day on which it is posted”, in POFA 2012 Paragraph 9(6). However, it is written in the NTK received by the Defendant “if, after the period of 28 days beginning with the day after the Issue Date of this notice” where “Issue Date” is defined in the NTK as the date “posted”, not “given”. Since the NTK is not POFA 2012 compliant, keeper liability cannot be claimed.

7. The alleged contravention took place at night. Upon investigation, none of the signs containing relevant parking terms, nor the Pay and Display Machines in the car park were adequately illuminated or in a position to be seen by the driver. The terms are displayed in a font which is too small and too high up to be read from a passing vehicle and are in such a position that anyone attempting to read the tiny font would be unable to do so easily. 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.

8. Furthermore, it is also denied that the signage is adequate to bring the charge to the notice of drivers (POFA 2012, Schedule 4, at Paragraph 2(3)(b)(ii)) and so keeper liability cannot be claimed.

9. POFA 2012, Schedule 4, at Paragraph 9(2)(c) states that the Notice To Keeper (NTK) must, “describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose”. The NTK received by the owner states the contravention reason as, “Parked without payment of the parking tariff for the vehicle registration mark of the vehicle on site the maximum period allowed at this site is minutes”. Note that a maximum allowed time has been implied but then not been stated. Therefore, the circumstances requiring payment have not been described. Since the NTK is not POFA 2012 compliant, keeper liability cannot be claimed.

10. POFA 2012, Schedule 4, at Paragraph 2(3)(b)(i) states that notices must, “specify the sum as the charge for unauthorised parking”. Instead it is merely stated on the signs that, “This is a 24hr Pay and Display car park. Failure to comply will result in a parking charge”. It is not explicitly stated what needs to be complied with or what the relevant obligation is. Therefore, keeper liability cannot be claimed.

11. 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.

12. 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, for which no calculation or explanation is given, which have not actually been incurred by the Claimant since no debt has been collected. This appears to be an attempt at double recovery.

13. Furthermore, POFA 2012, Schedule 4, at Paragraph 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.

14. 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.

15. 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.

16. 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

jerry2354

Also, going back to the Excel vs Ambler case, do they have to provide proof that the P&D machine was correctly working/records weren't tampered with, as how do they actually prove that someone didn't buy a ticket? As in point 10, the ANPR only proves that the car entered/left? Should request of proof that the records haven't been tampered with be added to point 10?

Coupon-mad

Looks good to me, that defence.

If they have not yet sent you a readout from the machine that day (with other VRNs partly redacted for data privacy purposes) then send them a SAR now asking specifically for that list, showing your VRN or a near-miss that is identifiable as your car, as opposed to any other captured by ANPR in that period of time at that location.

The point in Excel v Ambler was, the SAR showed one version and the later list they adduced for court evidence, was altered.

So, you need the first version asap! Have you got it? SAR then!

I would not at this stage tip them off that you want proof it was not tampered with, you don't want them knowing you know this is possible. You can keep that powder dry and raise the Excel v Ambler case later, or at the hearing, and put the rep on the spot to show lack of tampering.

jerry2354

Thank you Coupon-mad!

I just remembered a point where there was a mistake in the NTK from earlier which might have got lost...

The contravention reason stated in my NTK is, word for word (note the missing time):

101) PARKED WITHOUT PAYMENT OF THE PARKING TARIFF FOR THE VEHICLE REGISTRATION MARK OF THE VEHICLE ON SITE
The maximum period allowed at this site is minutes

In POFA it says that the NTK must describe the parking charges and the circumstances in which the requirement to pay them arose. Surely mentioning an allowed time but then not actually stating what this is, they haven't actually explained the circumstances? Or have I misunderstood and unfortunately is just a typo (as they have said its for parking without payment)?

Coupon-mad

In POFA it says that the NTK must describe the parking charges and the circumstances in which the requirement to pay them arose.

It's a point worth including - add it between 8 and 9, and adjust the numbering.

If they refused the VRN list then push for it - insist now.

You are entitled to the VRN and payment shown that matched (or near-matched) your car. They may redact the other VRNs that day but cannot withhold your data from you.

jerry2354

It's a point worth including - add it between 8 and 9, and adjust the numbering.

I've updated the defence there, thanks. I will send off another SAR.

Coupon-mad

Not another SAR as such - a reply complaining about the omission and telling their DPO to supply a redacted version within 7 days, as at the moment they are withholding data relating to your car that you have a right to see.

Threaten them with a complaint to the ICO by, say, Monday 6th May if they refuse.

jerry2354

Ah I have already sent off the email. I sent it as a reply to the previous email though, attaching the SAR template but this time only asking for the list. I also threatened an ICO complaint but mentioned nothing about a deadline (other than the one calendar month in the SAR template). Should I just leave it as is or write a followup email reiterating the complaint and setting the deadline?

Coupon-mad

I'd leave it and if they refuse, make an online ICO complaint.