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No Summons but Judgement ordered

edited 30 November -1 at 12:00AM in Parking Tickets, Fines & Parking
98 replies 3.8K views
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  • edited 31 May 2019 at 2:31PM
    LynxyLynxy Forumite
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    edited 31 May 2019 at 2:31PM
    Coupon-mad wrote: »
    As posted above, get that sent today by email & post. Can do no harm!

    NEVER rely on mere emails to your court; they don't like being bombarded with emails, in my experience. You have to be more formal, hence posting a signed letter.

    Send a copy by email to Gladstones as well.

    Chase this up next week with a phone call to the Court Supervisor, say on Tuesday.

    Done all three.
    I sent an email to CC at Uxbridge & London
    Printed the letter and signed, sent it via 1st Class Recorded to both CC courts.
    Emailed Claimants (UKCPM & Gladstones)

    I will now ready my N244.
  • BrownTroutBrownTrout Forumite
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    Call the court Monday morning and ask for it to be front if a judge ASAP
  • LynxyLynxy Forumite
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    BrownTrout wrote: »
    Call the court Monday morning and ask for it to be front if a judge ASAP

    Absolutely - I will be ringing it first thing in the morning.
  • Le_KirkLe_Kirk Forumite
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    Lynxy wrote: »
    Printed the letter and signed, sent it via 1st Class Recorded to both CC courts.
    Recorded (signed for) posted on a Friday will get there on a Saturday when no-one will be there to sign for it. The usual recommendation is First Class with a FREE certificate of posting, deemed delivered two (working) days later.
  • LynxyLynxy Forumite
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    Hello All,

    I chased up the courts today and spoke to a nice but firm lady. She was adamant that the notice/call to court was definitely sent and it was not the courts fault that it was not delivered. I argued my case and she said all she can do is pass on the letter to the judge and it was up to the judge to decide if the trial was urgent for a re-trial. In the mean time she said I should prepare for a set aside in-case it is rejected.

    So fearing the worst case scenario, below is my set aside case; witness statement & evidence:

    1.1 The Claimant has not identified the correct driver;

    1.2 The Defendant denies that he was the driver of the vehicle at on the 20 April 2017

    1.3 The Claimant had no capacity to form a contract the driver;

    1.4 If the Claimant did have such capacity, it did not offer a genuine contract and the amount claimed was intended as a penalty;

    1.5 Any contract is invalid and unenforceable;

    1.6 The Claimant has no contractual right to pursue these proceedings in its own right;

    1.7 The Claimant had no right to issue parking charges to the driver of the vehicle;

    1.8 The Particulars of Claim disclose no cause of action and are in breach of several aspects of the Civil Procedure Rules (“CPR”), so much so that they are incoherent and do not amount to any
    recognisable claim. They should be struck out;

    1.9 The Notice to Keeper is not a valid Notice to Keeper served in accordance with Schedule 4 to the Protection of Freedoms Act2012 and therefore the Defendant cannot be held liable as the registered keeper of the vehicle in question;

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

    3. The Defendant denies that the Claimant can have incurred £50 in solicitors’ costs or that these are recoverable

    4. The identity of the driver of the vehicle on the date in question has not been ascertained. The Claimant has not identified the driver. The Defendant does not know who the driver was. He has made reasonable enquiries of third parties who were authorised to drive the said vehicle at the time of the alleged incident. None have admitted that they were the driver because they cannot remember, and the Defendant cannot remember who used the car on the 20 April 2017, a date more than 12 months ago. The Defendant has no means of finding out who the driver was, and is not obliged to do so by the Protection of Freedoms Act 2012 or any other legislation, or pursuant to any contractual obligation.

    5. With regard to the Claimant’s assertion that the Defendant, as keeper of the vehicle, should be presumed to be the driver unless he sufficiently rebuts this presumption, which it claims is a
    principle established by Elliott v Loake 1983 Crim LR 36:

    5.1 The case relied upon does not provide that any such presumption can or should be made, nor that it is for the Defendant to rebut it. A claim is for the Claimant to prove and there is no reverse burden of proof in respect of parking charges;

    5.2 In the case relied upon there was overwhelming evidence that the keeper of the car was driving it at the relevant time – there is no such evidence in this Claim (quite the contrary);

    5.3 In any event the Defendant has sufficiently rebutted any presumption because at the relevant time he was not entitled to drive, having no valid driving licence or insurance.

    6. The Defendant therefore has no liability as the driver of the vehicle, whether or not a valid contract was formed between the Claimant and the driver, as claimed. In any event it is denied that there was any such contract

    7. The Defendant puts the Claimant to full proof that he was not the driver of the vehicle at the relevant time.

    8. To be liable as the “Keeper” of a vehicle under paragraph 4(1) of Schedule 4 to the Protection of Freedoms Act 2012 (“the Act” and “the Schedule” respectively), paragraph 4(2) of the Schedule
    clearly states that this is only if each of the four conditions set out in paragraphs 5, 6, 11 and 12 of the Schedule have been complied with. The Claimant has failed to comply with those conditions, there is no legal basis whatsoever to enforce the parking charge against the Defendant as the vehicle’s registered keeper.

    8.1 Paragraph 8 (2) (g): the keeper should be notified of the arrangements for the resolution of complaints or disputes. However, the Notice contains no information about the right to appeal, or to whom (the Defendant did not understand at the time, but does now, that he could have appealed to the Claimant’s professional body, or to the independent parking appeals service, POPLA – this opportunity has now been denied to him).

    8.2 Paragraph 12: any regulations must have been complied with. In the absence of regulations have been issued by the Secretary of State pursuant to paragraph 10 of the Schedule, the regulations issued by the professional body governing the relevant private parking company are to be treated as binding pursuant to paragraphs 10 and 12 of the Schedule (this was established by the case of ParkingEye v Beavis referred to below). The Claimant is a member of the IPC and has breached its code of conduct in several respects. Therefore it has not complied with regulations for the purposes of paragraph 12. The Claimant has breached the Code in many respects, as follows:

    8.3 “Operators are required by the DVLA to be a member of an Accredited Trade Organisation in order to obtain keeper details”: it is not clear if they were at the time of the alleged parking on 20th April 2017 and the Defendant puts the Claimant to full proof thereof;

    8.4 “you should be able to demonstrate how such charges are calculated…as a genuine pre-estimate of loss” (paragraph 8, page 11 of the Code). There is no explanation of how the £100/£160 charge has been calculated with reference to actual loss;

    8.5 'you must not imply that the registered keeper can be held responsible for the parking charge under [the Act] unless the relevant time limits within the Act have been met” (paragraph 1.3, Part C) – both the Notice to Keeper, the correspondence received afterwards, the Claim and the Claimant’s Statement clearly imply this, when the Claimant must know that it has not complied with the time limits set out in Paragraph 8 (5) of the Act;

    8.6 The Notice to Keeper must provide details of the Complaints Procedure by which the keeper can notify the Information Commissioner and the DVLA if they feel that their keeper details have been used inappropriately (paragraph 3.1(r), Part C). The Defendant was not notified of his rights to make a formal complaint about this and specifically reserves his position on whether there has been a breach of his rights under the Data Protection Act and whether he will issue a counterclaim or a separate claim.

    9. At the time of the alleged parking 20 April, 2017 the Claimant was not a member of IPC, its professional body (the IPC website shows that it joined only on 1 October 2017). There is no evidence that the driver, whom the Claimant concedes was parked with a permit displayed in his/her windscreen (whether obscured or not) was clearly parked with the consent of a resident, a right vested in them by virtue of their lease/tenancy. For many other reasons (set out above) the parking charge which is the subject of these proceedings is invalid. The Claimant therefore had no right to request the keeper’s details from the DVLA and to use them, and has breached the Defendant’s rights under the Data Protection Act by doing both.Vidal-Hall v Google Inc (2014) EWHC 13 (QB) is authority that misuse of personal data is a tort.
  • Coupon-madCoupon-mad Forumite
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    I now have £500 odd to pay within 21 days.
    How on earth did a Judge order that £500 odd was due, for a single £60/£100 PCN that cannot have extras added (the Beavis case, the POFA and the proportionality rules in the CPR preclude such made up double recovery).

    What is the breakdown on the order?

    Did you ever receive the Claimant's WS and evidence, at all, pre-trial?

    You need more than a defence, you need a Witness Statement too.

    But let's hope the Judge realises that the lady was wrong and that his court staff have made a mess of this one and never posted out the hearing date & directions to you.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
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  • LynxyLynxy Forumite
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    @ Coupon Mad - Thank you.

    The breakdown was £171.65 judgement for the claimant and £265.00 for the claimants cost assessed - Sorry, its under £500 but still :sad:

    I did get Claimant WS and evidence although I was expecting this before the court date anyway. In hindsight, that should have rung alarm bells and I should have chased with the courts but no prior experience to know otherwise.

    I said I will ring up and chase tomorrow to see what the judge says (if the judge has time to review my letter)

    I am looking at witness statements in the mean time to help me.
  • Coupon-madCoupon-mad Forumite
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    £171.65 judgement for the claimant
    Daft Judge. Parking firms CANNOT recover an imaginary made up 'debt collector letters' sixty quid on top of £100 parking charge that already covers the minimal cost of those exact same letters that form the business model.
    and £265.00 for the claimants cost assessed
    Jeez. The rep obviously got their costs awarded, again that should not have happened if you'd been able to attend.
    I did get Claimant WS and evidence although I was expecting this before the court date anyway. In hindsight, that should have rung alarm bells and I should have chased with the courts but no prior experience to know otherwise.
    That worries me, as clearly the Claimant received notice of the court date.

    Wait to see what your Judge says this week, so you know which way to go.

    Another alternative, as you will struggle to set this aside if the court say you were sent notice of the hearing, would be to APPEAL the decision instead, on the quantum and lack of keeper liability. Appeal costs £100-odd court fee and you'd have to set out why the Judge erred on quantum (the amount) and the POFA which I assume was argued in your defence.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
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  • LynxyLynxy Forumite
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    Correct - Did you see my defence above?
  • Coupon-madCoupon-mad Forumite
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    Was that your original defence, word for word?
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
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