County Court Claim Form Recieved - Excel - BW Legal

SavvySavey

The red card on my card did say "This is not a parking charge notice" but also says "A parking charge notice may be issued" and then then first letter was a PCN.



Do I still use the VCS 'not a CN' from the NEWBIES thread templates?

Coupon-mad

Obviously that's pretty much an exact match example, so no idea why you didn't use it!

How do you think your 'not a CN' red card followed by a premature NTK is any different?

SavvySavey

I just wanted to check. Also, I didn't realise VCS was another/same parking firm. So do they have to stick a PCN on your car to be able to send you a NTK/NTD in the post?


I'll work on a new defence using that template.

Coupon-mad

Sister firms, not the same firm.

Both owned by this person, originally a 'rogue' ex-clamper who is now so swimming in money that his family all ride/own ponies, attend the Horse of the Year Show and went to private school somewhere near their mansion:

https://www.standard.co.uk/news/judge-quashes-300-parking-finebecause-it-set-out-to-frighten-and-intimidate-driver-7301823.html

https://i.dailymail.co.uk/i/pix/2012/05/27/article-0-0085E7CB000004B0-642_233x261.jpg

https://i.dailymail.co.uk/i/pix/2012/05/27/article-0-0085E7CB000004B0-642_233x261.jpg

So do they have to stick a PCN on your car to be able to send you a NTK/NTD in the post?

Wow you need to get your head around the POFA.

Try reading the long Witness Statement just typed up by this OP who has done his reading:

https://forums.moneysavingexpert.com/discussion/5906037

Post #51 explains it.

Or you could read Schedule 4 of the POFA for yourself, it's linked in the NEWBIES thread first post for 'those who need to dig deeper'. Like you do!

SavvySavey

Thanks for your help. I thought I had done my research, but you've given more to look into.


Now I have, I realised I've never received anything called a "Notice to Keep". The first letter was in fact labelled a "Notice to Drive".


As such, I have taken that template you pointed out but adjusted as so. Thoughts would be appreciated.




IN THE COUNTY COURT

CLAIM No: XXXXXXX

BETWEEN:

EXCEL PARKING SERVICES LTD (Claimant)

-and-

XXXXXXX (Defendant)

________________________________________
DEFENCE
________________________________________

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

2. The facts are that the vehicle, registration XXXXX, of which the Defendant is the registered keeper, received a Charge Notice “for a contravention on XX/XX/XXXX at XXXXXX Car Park” which has not been paid.

2.1. It is denied that a 'charge notice' ('CN') was affixed to the car on the material date given in the Particulars. This Claimant is known to routinely affix misleading pieces of paper in a red/black envelope impersonating authority, bearing the legend 'this is NOT a Parking Charge Notice'. It is reasonable to conclude that the hybrid note that the Claimant asserts was a 'CN' was no such thing, and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

2.2. Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a CN.

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. 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.

5.1 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. The signs are also sparse in some places and are not immediately obvious from all parking bays. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

6. The signage states that vehicles must be parked correctly with a ticket displayed at all times. Noting that it is impossible to have a ticket before one is parked, there is no clear given time for how long the driver was permitted to buy the ticket and display it.

6.1. There is also a distinct lack of signage available with instructions on how to pay noting that rates are not displayed on all signs and the location of signs that do display it and the machines to pay are not pointed out.

6.2 It is due to a lack of clear instructions that the driver had to spend some time finding the pay machines, finding prices and finding that they had to enter the registration number. It is due to this, along with a queue, that it took the driver longer than expected to pay and display the ticket on the car.
[FONT=&quot]
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[FONT=&quot]6.3 On this basis it is denied that, if a contract did exist, then the driver breached it. The requirements stated on the signage had been fulfilled and any delay was caused by obstructions made by the claimant.[/FONT]

7. 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 pieces of paper that are not 'charge notices', and to pursue payment by means of litigation.

7.1. It is suggested that this novel twist (unsupported by the Protection of Freedoms Act 2012, Schedule 4 - the 'POFA') of placing hybrid notes stating 'this is NOT a Parking Charge Notice' on cars, then ambushing the registered keeper with a postal Notice to Driver is unlikely to have been in the contemplation of the Claimant's principal.

7.2. It is averred that the landowner contract, if there is one that was in existence at the material time, is likely to define and provide that the Claimant can issue 'parking charge notices' (or CNs) to cars - following the procedure set out in paragraph 8 of the POFA - or alternatively, postal PCNs where there was no opportunity to serve a CN (e.g. in non-manned ANPR camera car parks, and as set out in paragraph 9 of the POFA). The Claimant is put to strict proof of its authority to issue hybrid non-CNs, which are neither one thing nor the other, and create no certainty of contract or charge whatsoever.

7.3 It is also worth noting that the defendant has never been served a document labelled a “Notice to Keeper”. If the claimant wishes to claim that the postal NTD is in fact an NTK then either: it is too premature under POFA paragraph 8 as the defendant had not received a real CN; it is too late under paragraph 9 (if paragraph 9 can apply here) as it was issued on XX/XX/XXXX meaning it’s presumed delivery date is XX/XX/XXXX. This means the delivered date is 18 days after the contravention data, 4 days longer than allowed by paragraph 9.

8. The POFA, 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.

9. 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
SIGN
DATE

Coupon-mad

in a yellow/black envelope

Do you need to change that to a red envelope? I think I need to change the template example as it wasn't yellow & black was it?

And as you are criticising the 'CN'/no NTK issue - specifically about the documents required under the POFA, and arguing 'no keeper liability' then don't also admit to being the driver, as you did here!

6.2 It is due to a lack of clear instructions that the defendant had to spend some time finding the pay machines, finding prices and finding that they had to enter his registration number. It is due to this, along with a queue, that it took the defendant longer than expected to pay and display the ticket on the car.
6.4 On this basis it is denied that, if a contract did exist, then the defendant breached it. The fulfilled the requirements stated on the signage and any delay was caused by obstructions made by the claimant.

The Defendant should be replaced by the more vague: 'the driver' in that whole section.

SavvySavey

Thanks for pointing that out.I've edited that post rather than re-post the new defence.


It think I'm fairly happy with my defence. I'm going to leave it a few days and the re-read it. If I'm still happy, I'll file it.


In the mean time, any more thoughts/comments would be appreciated.

SavvySavey

Thanks for the help so far. After re-reading it, I've fixed a small grammatical error and I will be submitting this on Monday unless anyone has further suggestions

SavvySavey

Hi again,


Got my DQ. I know how to complete it. I'm just wondering how I send it. Can I email it or do I have to post it? And if I have to post it should I use tracked postage?


And, as well as the copy to the courts, do I send it to the Claimant themselves or BW Legal?

bargepole

SavvySavey wrote: »

Hi again,


Got my DQ. I know how to complete it. I'm just wondering how I send it. Can I email it or do I have to post it? And if I have to post it should I use tracked postage?


And, as well as the copy to the courts, do I send it to the Claimant themselves or BW Legal?

You should post copies to the Court, and to BW Legal. No need to use signed for delivery, first class post is fine.