Private PCN with no first letter, now County Court Business Centre claim

Sboo

I’ve put together a Defense, I’m not sure if some of the points I’ve put in would seen irrelevant, or if I’ve waffled on the same points could anyone take a look over it for me please?

IN THE COUNTY COURT

CLAIM NO: XXXX

XXXX (Claimant)

And

XXXX (Defendant)


DEFENCE

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

2. It is admitted that the Defendant was the registered keeper of the vehicle in question at the time of the alleged incident.

3.The claim appears to be based on damages for breach of contract. However, it is denied that any such contract existed.

4. It is denied that:
A contract was formed to pay anything more than the advertised tariff (nil);
The Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
There was any agreement to pay a further penalty parking charge;
That there were Terms & Conditions prominently displayed around the site which prominently displayed the £100 penalty.
That the allotted time allowance was prominently displayed (the allowance is communicated on a circular segmented ‘clock’ that does not appear to represent one hour);
The Claimant contacted the Defendant with an initial PCN after the alleged incident;
The Defendant received an initial penalty or fair right to appeal.
The Claimant’s company fully complied with their obligations within the International Parking Community Code of Practice.

5. The Defendant denies that they would have agreed to pay the original demand of £100 had the Terms & Conditions of the contract been sufficiently visible, especially when this amount is so excessive in comparison to the local Council’s PCN halved to £25/35 if paid within 14days, or another private parking firm’s PCN at a nearby supermarket with an early repayment of £20.
5.1. It is also denied that an additional £60 of ‘debt collection charges’ could have been pursued when previous PCN letters were either not sent, or sent in a timely manner by the Claimant’s company. The Claimant has at no time offered an explanation for how these added ‘debt collection charges’ have been calculated, or what steps have been taken to cause them.
5.2. The Protection of Freedoms Act 2012, Schedule 4, Section 4.5 states that ‘the maximum sum which may be recovered from the keeper’ is the charge stated on the Notice to Keeper, in this case £100. This amount was not offered to the Defendant before the expiry of such penalty. This addition appears to be an attempt at a double recovery.

6. The Defendant used the car park on 20/12/18 noting that there were no Pay & Display machines for customers of the area.
6.1. The Defendant did not received any PCN letters prior to approx 25/02/19, with a Demand for Payment letter (which had an added fee of £60 for ‘debt collection costs’) and a Final Demand for £100 issued on 31/01/19.
6.2. An initial PCN letter has never been delivered to, or accepted by the Defendant giving no chance to pay an initial reduced penalty if required, or to appeal the penalty. Under the Protection of Freedoms Act 2012, Schedule 4: Para 7.2.d. a notice must be given to ‘Inform the driver of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available’. Discounts or arrangements were not offered, and requests from the Defendant for the complaint to be followed up were ignored by the Claimant.
6.3. The Defendant did not receive a PCN until two months after the alleged incident, therefore it cannot be proven to the conditions, and/or visibility of their signage at the time.
6.4. The Defendant contacted the Clamant’s company by phone regarding the initial PCN after received said letters. In Jolley v Carmel Ltd (2000) 2 -EGLR -154, it was held that a party who makes reasonable endeavours to comply with contractual terms should not be penalised for breach. The Defendant has been penalised with additional charges for debt collection, despite any proof of initial debt being issued.
6.5. The Claimant has offered no proof to the posting of the initial letter, or proof of it’s receipt at the delivery address. Thus far, a request for a subject access request (SAR) from the Defendant to the Claimant has not yet been actioned.

7. Between the date of the incident until March 2019 the Defendant at no point had less than £xxx in their current account, therefore no reason to ignore the initial claim if this had been accepted.
7.1. the Claimant will no doubt have the court believe that a ‘relevant obligation’ existed, which under the Protection of Freedoms Act 2012 (setting out the will of Parliament for parking tickets issued on private land) is defined as ‘an obligation arising under the terms of a relevant contract’.

8. In summary, the Claimant has offered no legal basis for the sum claimed, and the court is invited to dismiss the claim in its entirety.

I believe that the facts contained in this Defence are true.

XXXX

Le_Kirk

You have no point 1.
Defence is spelled with a "C"

6.1. The Defendant did not received any

Should be: -

6.1. The Defendant did not receive[strike]d[/strike] any

Thus far, a request for a subject access request (SAR) from the Defendant to the Claimant has not yet been actioned.

Better as: -

Thus far, submission of Subject Access Request (SAR) from the Defendant to the Claimant has not been actioned.

I think your point 7 is irrelevant
Check out the concise defences written by Bargepole in the NEWBIE thread. You missed the point about landowner authority.

Sboo

I’ve cut down some of it - tried to cut out some repetition or further explanation of points, and added an insert of LA at the end.
How’s this? (Edited realising repeats of ‘that’ in Denied section)

...

DEFENCE

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

2. It is admitted that the Defendant was the registered keeper of the vehicle in question at the time of the alleged incident.

3. It is denied that:
A contract was formed to pay anything more than the advertised tariff (nil);
The Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
There were Terms & Conditions prominently displayed around the site which prominently displayed the £100 penalty.
The allotted time allowance was prominently displayed (the allowance is communicated on a circular segmented ‘clock’ that does not appear to represent one hour);
The Claimant’s company fully complied with their obligations within the International Parking Community Code of Practice.

4. The Defendant denies that they would have agreed to pay the original demand of £100 had the Terms & Conditions of the contract been sufficiently visible, especially when this amount is so excessive in comparison to the local Council’s PCN, or another private parking firm’s PCN of £40 at a nearby supermarket.
4.1. It is also denied that an additional £60 of ‘debt collection charges’ could not have been pursued when previous PCN letters were either not sent, or sent in a timely manner by the Claimant’s company. The Claimant has not stated how these extra charges have been calculated.
4.2. The Protection of Freedoms Act 2012, Schedule 4, Section 4.5 states that the maximum sum which may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. This amount was not offered to the Defendant before the expiry of such penalty. This addition appears to be an attempt at a double recovery.

5. The Defendant did not receive any PCN letters prior to approx 25/02/19; a Demand for Payment letter (with the additional £60) and a Final Demand for £100 issued on 31/01/19.
5.1. An initial PCN letter has never been delivered to, or accepted by the Defendant giving no chance to pay an initial reduced penalty if required, or to appeal. Under the POFA 2012, Schedule 4: Para 7.2.d. a notice must be given to ‘Inform the driver of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available’. Discounts or arrangements were not offered.
5.2. The Defendant did not receive a PCN until two months after the alleged incident, therefore it cannot be proven to the conditions, and/or visibility of their signage at the time.
5.3. Thus far, a request for a Subject Access Request (SAR) from the Defendant to the Claimant has not been actioned.

6. The Claimant is to put 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.

7. In summary, the Claimant has offered no legal basis for the sum claimed, and the court is invited to dismiss the claim in its entirety.

I believe that the facts contained in this Defence are true.

XXXX

Sboo

Ok so I emailed AND posted a copy of my defence. Think the letter will be too late by now but got the email receipt through,
However, I’ve just logging into MCOL and it now says I had a judgement made against me yesterday!
Is this a CCJ? Is this normal or have I done something wrong?
Pretty worried now as I thought I had the 33 days to get my defense submitted

KeithP

On 23rd May you told us you were doing the Acknowledgement of Service.

In post #11 above you told us the Issue Date on your Claim Form was 10th May 2019.
Is that correct?

Did you do the AoS by 29th May as described here:

To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread.

...in other words, as spelt out in post #13 above.

Does the MCOL Claim History mention Acknowledgement of Service at all?
Submitted? Filed? Accepted?

Sboo

I had been on it previously and saved my progress, but I went back on it and followed the info in the thread and posted on here when I’d completed it...or at least I thought I had. I don’t know how I could have missed or not completed it?

The dates are all correct, and no it doesn’t mention the AoS. It just has the claim against me on the 10/5 and the judgement against me.

Does this mean I now just have to pay it all?

Le_Kirk

If you do have a judgment against you (CCJ) then you will need to pay it before the deadline. When you do pay it, make sure you get a receipt. You should receive a letter from the court explaining all this but maybe you can call the court and ask for the pertinent details so you can pay it and avoid the CCJ appearing on your credit history.

In your last post you wrote that you had a judgment against you "yesterday" and then said 10/05. I hope you meant 10/06.

KeithP

If the MCOL claim history doesn't mention Acknowledgement of Service, then the Claimant has been free to seek a Default Judgment since 29th May.


Le_Kirk, the claim was issued on 10th May.

Sboo

Yes sorry, 10/06 for the judgement. I’ll just get it paid now then.
Unbelievable, I must’ve just not checked it had saved the AoS or something in all my confusion.
I’ll live and learn I suppose.

Thank you all for all your help. Hopefully this will never happen again but if it does I’ll feel far more confident at least.

Le_Kirk

KeithP wrote: »

Le_Kirk, the claim was issued on 10th May.

Thanks Keith, I see the confusion (in my mind) post # 27 was ambiguous.