County Court Claim Received - Daughter was the Driver

Old_Bird_65

Hello, I'm hoping you can give me a few pointers on my Defence Letter. I'm posting as a Newbie and worrying I might be told off for writing an un-necessary post, or saying the wrong thing! I've learnt so much from this site already from reading the Newbie section and loads of threads, which is a God-send! I've also discovered I've have made some errors!

The basic details of my case are:

The incident was 14/5/18, The Claim Issue date is 17/7/19 and I submitted my Acknowledgement of Service on 31/7/19 which I believe gives me a deadline of 19/8/19 to submit my defence. I have also submitted a SARS to Civil Enforcement Ltd and request to QDR Solictors to put a hold on the case in the meantime.... I only did that yesterday as I previously thought it was too late, but read it's never too late!

My daughter was driving, I am the Keeper of the vehicle
My daughter attempted (3 times) to pay for parking by phone and believed the final attempt was successful. We discovered later that no payment was taken from her account.
We heard nothing until 42 days after the incident, when I received a 'Letter of Notification Regarding Keeper Liability' stating it had been over 30 days since I had been issued a PCN.
I quickly responded by appealing through their system (I know now... big mistake!) and mentioned the fact my daughter was the driver, although didn't release her name/address (Yep, I've learnt that too... big mistake!), I failed the appeal and then failed the POPLA appeal too.
I've drafted my defence, using the SIP/Gladstones Draft Defence as my inspiration and it's quite long! Is it okay to post it on this thread so people can have a read and let me know what they think?
I'm presuming to take responsibility for this case, rather than my daughter as she's not really inclined to take on this fight and doesn't have the funds pay either! Will it be necessary for her to attend the court with me? No mention of her has been made by the Claimant/Representative.

Thanks so much in advance for your help!

KeithP

Old_Bird_65 wrote: »

The Claim Issue date is 17/7/19 and I submitted my Acknowledgement of Service on 31/7/19 which I believe gives me a deadline of 19/8/19 to submit my defence.

You are right with your target date.

With a Claim Issue Date of 17th July, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Monday 19th August 2019 to file your Defence.

That's not long now. Plenty of time to produce a Defence, but please don't leave it to the 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 an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of [URL="https://forums.moneysavingexpert.com/discussion/4816822NEWBIES FAQ sticky thread[/URL] to find out exactly what to do with it.

Redx

Too late to name the driver and she has no involvement in this court case

If CEL failed pofa then you as Keeper are not liable, plus you weren't the driver so no driver liability

If they stuck to POFA then you as keeper can be held as being liable, regardless of whether or not you were driving

Thank you for reading the newbies sticky thread and other threads, good research was needed

Yes you should do the SAR, so you get all your data, so glad it's been done

Too late for the place it on hold, so that will be refused

Post the draft defence below, and I hope you have included the abuse of process paragraphs by coupon mad posted in the thread by beamerguy too

Old_Bird_65

Actually I thought I'd post it anyway! I'm a bit unsure about paragraph 16... could this be considered unneccessary and libelous? Thanks so much for your help... any constructive criticisms gratefully received!

I am XXXX, Defendant in this matter and I assert that the Claimant has no cause for action for the following reasons:
1. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.
2. The Claimant claims to have sent a Parking Charge Notice (PCN) to the Defendant in relation to an alleged breach of the terms and conditions by the Driver of the vehicle XXXXXX when it was parked at ‘Car Park at The Centre’, High Street, Polegate, East Sussex, BN26 6AQ on 14th May, 2018. No PCN was received by the Driver or Defendant. A ‘Letter of Notification Regarding Keeper Liability’ (which the defendant understands to be a ‘Notice to Keeper’ (NTK), dated 25th June, 2018, demanding full payment (of the original £60 charge, increased to £100 for apparent late payment) was received six weeks after the date of the alleged incident. Contained in this letter was a statement that the ‘IAS (Independent Appeals Service) is no longer available at this stage’. (NB: An electronic PCN document was later submitted to POPLA on 4/9/18 as part of the evidence supplied by the Claimant, which in turn was made available to the Defendant by POPLA). If the Defendant is mistaken that this document is indeed an NTK then it would indicate that the Claimant neither supplied a PCN or NTK to the Defendant which would demonstrate the Claimants total disregard for the British Parking Association’s Code of Practice.
3. It is believed that it will be a matter of common ground that the claim relates to a purported debt as the result of a PCN in relation to an alleged breach of the terms and conditions by the Driver of the vehicle XXXXX when it was parked at ‘Car park at The Centre’, High Street, Polegate, East Sussex, BN26 6AQ. The Claim Form issued on 17/07/19 states the particulars of claim as “Claim for monies relating to a Parking Charge for parking in a private car park managed by the Claimant in breach of the terms + conditions”
4. It is denied that:
a. A contract was formed. Even if a contract was potentially formed it was frustrated by the unexpected and uncommunicated failure of the Claimant's ‘Phone & Pay’ facility, and it is trite law that no party can be held liable for breach to another under such circumstances of frustration of contract.
b. There was an agreement to pay a parking charge.
c. That there were Terms and Conditions prominently displayed around the site which communicated any additional punitive parking charge (effectively a private 'fine') in large lettering, in a clear and concise way, on a par with the tariff signs where the fees were advertised in the largest font. By contrast, the 'parking charge' is positively buried in small print, contrary to Lord Denning's 'Red Hand Rule' and contrary to the requirements of the Consumer Rights Act 2015.
d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums which are in any case unsupported by the Beavis case and unsupported for cases on the small claims track.
e. The claimant company fully complied with their obligations within the British Parking Association Code of Practice of which they were member at the time.
f. The Phone And Pay facility, being indisputably an offer of a 'distance contract', complied with The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, which says:

''Confirmation of distance contracts: 16.—

(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
(2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
(3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.''
5. It is further denied that the Defendant is liable for the purported debt.
Rebuttal of Claim
6. No PCN was received by the Defendant but only a ‘Letter of Notification Regarding Keeper Liability’ (which the Defendant understands to be a ‘Notice to Keeper’ (NTK)) 42 days after the ‘incident’. The Defendant believes that this NTK is not legally binding for the following reasons:
a. The Notice to Keeper (NTK) was sent on 25/6, 42 days after the 'incident'. According to Schedule 4 of the Protection of Freedoms Act, an NTK must be sent within 14 days 'beginning with the day after that on which the specified period of parking ended'
b. According to POF Act, Sched 4, Parag. 9 (b), the NTK should inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full. These details were not present in the document received. The NTK received by the Defendant stated that the Claimant had issued the Registered Keeper with a PCN over 30 days previously and the debt remained unpaid. It further stated that the Registered Keeper was liable for the full amount outstanding (£100) for the PCN for the following reasons (The Defendant assumes the letter was meant to read ‘one (or more?) of the following reasons’):
• You (the Defendant) have failed to provide us with any information as requested by the Notice to Keeper; or
• You have failed to provide the full, correct name of the driver and their current address for service
• You have identified someone who has denied being the driver at the time of the parking event mentioned above, or has not responded at the address provided; or
• You are a Hire of Leasing company and have not provided the full documentation and information required
As the Defendant had no previous knowledge of the incident and had certainly not been asked for any information regarding the Driver, none of these points apply to this situation.
7. The Driver made all reasonable efforts to make payment for parking by using an approved payment channel.
a. Payment for parking was made via phone using a cashless system provided by ‘Phone & Pay’
b. This is a distance contract which requires certain information to be supplied in advance.
c. The Driver followed the ‘Phone & Pay’ instructions exactly as shown on the signage at the payment machine.
d. The Driver made 3 attempts to pay by telephone using the payment provider:
Call 1: Lasted 3 mins 28 secs. Having followed all the automated instructions and submitted debit card details, the recorded voice failed to confirm that the transaction was completed.
Call 2: Call didn’t connect
Call 3: Lasted 3 mins 36 secs. The driver followed all the automated instructions and submitted debit card details, the recorded voice indicated that the transaction was complete.
As the payment channel did not indicate any failure to make payment on the 3rd attempt and responded as if payment had been made, as such the Driver believed the necessary payment had been made.
e. The failure of the payment service to accept payment is not the Defendants responsibility. It is not reasonable in these circumstances for the driver to assume any more obligations for making the payment.
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 when unable to fully comply with the terms.
8. Neither the Driver nor the Defendant entered into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
9. The Defendant denies that they would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible. The amount demanded is excessive and unconscionable and especially so when compared to the level of Penalty Charge Notice issued by the local Council which is set at £50 or £25 if paid within 14 days.
10. The signage on this site was inadequate to form a contract with the motorist.
a. The signage on and around the site in question was unclear and not prominent and did not meet the British Parking Association (BPA) Code of Practice. The Claimant was a member of the BPA at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay the amount demanded by the Claimant, or any additional fee charged if unpaid in 28 days.
b. The size of font of the prices advised for parking is much larger than the font of the contract and the offer is not sufficiently brought to the attention of the motorist, nor are the onerous terms (the £100 parking charge) sufficiently prominent to satisfy Lord Dennings "red hand rule”.
c. In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.
11. The Claimant’s representatives, QDR Solicitors, have artificially inflated the value of the Claim. The Defendant submits the added costs have not actually been incurred by the Claimant; that these are figures plucked out of thin air and applied regardless of facts:
a. If the “parking charge” listed in the particulars of claim is to be considered a written agreement between Defendant and Claimant then under 7.3, the particulars fail to include “a copy of the contract or documents constituting the agreement”.
b. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £60.00 to £199.07 This appears to be an added cost with no apparent qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
c. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
Non-disclosure of reasonable grounds or particulars for bringing a claim:
12. Civil Enforcement Limited are not the lawful occupier of the land. The Defendant has reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim:
a. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
b. The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
c. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge.
13. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:
‘Claim for monies relating to a Parking Charge for parking in a private car park managed by the Claimant in breach of the terms + conditions (T & Cs). Drivers are allowed to park in accordance with T & Cs of use. ANPR cameras and/or manual patrols are used to monitor vehicles entering + exiting the site. Debt + damages claimed the sum of £182.00.
Violation date: 14/05/2108
Time in: 12:19
Time out: 23:00
PCN ref: REFXXXXXXX
Car Registration no: XXXXXXX
Car park:- Polegate

Total Due - £182.00
The Claimant claims the sum of £199.07 for monies relating to a parking charge per above including £17.07 interest pursuant to S.69 of the County Courts Act 1984 Rate 8.00% pa from dates above to 16/07/19. Same rate to judgement or (sooner) payment Daily rate to Judgment £0.04
Total debt and interest due £199.07’

14. The claimant has not provided enough details in the particulars of claim to file a full defence. In particular, the full details of the contract which it is alleged was broken have not been provided.
a) The Claimant has disclosed no cause of action to give rise to any debt.
b) The Claimant has stated that a parking charge was incurred.
c) The Claimant has given no indication of the nature of the alleged charge in the Particulars of Claim. The Claimant has therefore disclosed no cause of action.
d) The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence.
It just states “‘Claim for monies relating to a Parking Charge for parking in a private car park managed by the Claimant in breach of the terms + conditions” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The Particulars of Claim are incompetent in disclosing no cause of action.

15. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where another relevant poorly pleaded private parking charge claim by Gladstones was struck out without a hearing due to their ‘roboclaim’ particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. The Practice Direction also sets out the following example which is analogous to this claim: ‘those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.’

16. The Defendant researched the matter online, and discovered that the Directors of the Claimant’s representative QDR Solicitors: John William Dormer, Lindsay Ellis, Steven Alexander Halkett, Anthony Rhys Jarman, Robert James Lee, Peter Lowe, Martin Stuart Oliver, Sarah Jane Perry, Paul Mathison Rice, Alexandra Janet Robinson and Claire Waring are also Directors for Wright Hassall Leamington Limited. Wright Hassall Leamington Solicitors were appointed by POPLA to help process their back-log of appeals in 2016; these findings indicate a conflict of interest. Such an incestuous relationship is incapable of providing any fair means for motorists to challenge parking charges, as well as potentially breaching the Solicitors Regulation Authority Code of Conduct.
17. The Defendant believes the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to their significant detriment as an unrepresented Defendant.
18. The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the Courts should be seen to support.
19. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.
20. The Defendant invites the court to dismiss this claim out as it is in breach of pre court protocols in relation to the particulars of claim under Practice Direction 16, set out by the Ministry of Justice and also Civil Procedure Rules (CPR) under 16.4 and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.
I believe the facts stated in this Defence Statement are true.

Old_Bird_65

Thanks for your help... although CEL claimed to have sent me a PCN, which I didn't receive, I was reading Schedule 4 of the POF Act and I see they say in Parag 8 (from the BPA Code of Practice Appendix), when referrering to the NTD, that 'A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered... on the second working day after the day on which it is posted...' Do you think that would also be the same for the PCN? If that's the case then they may have 'technically' stuck to POFA. I'm not sure what evidence I could produce to prove I didn't receive it?!
Also, do you know whether a 'Letter of Notification Regarding Keeper Liability' is the same as a NTK? I've been Googling it and struggling to come up with a definite answer.

The_Deep

Debt + damages claimed the sum of £182.00.

The debt is the damages, those which the PPC allegedly suffered when you daughter did not pay. They are trying to claim twice, read this

https://forums.moneysavingexpert.com/discussion/6014081

Nine times out of ten these tickets are scams so consider complaining to your MP.

Parliament is well aware of the MO of these private parking companies, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up, and access to the DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/enacted

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

Old_Bird_65

Thank you for your help everyone! It's very encouraging to see how many people are defeating these scumbags on this site, so hopefully I'll be another one!

I've edited my defence letter to include the Abuse of Process section Coupon-Mad put together and tidied it up a bit to reflect your comments, so hopefully it's okay now. I'm a bit nervous that it's a bit long and rambling (6 pages... is that okay?) and that I might have said something I shouldn't or missed something vital!

What do I do about my evidence? Do I attach that to the email or does that happen at witness statement stage?
Also, what do I do about claiming for my costs? Is that something I have to do now?

Sorry for all the questions, and thanks again for your help!

Old_Bird_65

Oh yes... I also wrote to the landowner (Co-Op) and my MP. My MP responded very quickly and asked for copies of all my correspondence and said she'd look into it, so hopefully she will

Redx

Only the defence is emailed to the CCBC in Northampton, nothing else

Read the bargepole timeline to see what happens and when

The WS plus exhibits plus costs are done a few weeks before the hearing at your local court, plus to the claimant as well. This will be several months from now

Once the defence has been sent, read up on the DQ stage which the CCBC will send next, where you choose your own local court etc, your local court will contact you by post later

Old_Bird_65

Okay, Defence Letter now submitted!
I only realised after sending it that it was supposed to be in Times Roman 12pt. Mine is in Arial 10pt - hope they won't reject it!

waamo

Old_Bird_65 wrote: »

Okay, Defence Letter now submitted!
I only realised after sending it that it was supposed to be in Times Roman 12pt. Mine is in Arial 10pt - hope they won't reject it!

They won't reject it. It's just not as easy to read that's all.