County Court Claim Form Received

Umkomaas

Windscreen ticket - they can't access your data from the DVLA until after day 28, they then have a further 28 days to issue a NtK, if they wish to hold the keeper liable under PoFA.

If at any stage you have identified the driver to them, PoFA protection is in the bin.

kingofsting

Great thanks, i haven't identified the driver to them

PP Timeline:
04/08/2014 - New PCN created (windscreen ticket)
02/09/2014 - automated request sent to DVLA
03/09/2014 - Response received from DVLA
03/09/2014 - First Reminder sent

Umkomaas

I bet the first letter (the NtK) was some way off being PoFA-compliant in 2014. Check it pedantically (word for word) against the Schedule 4 para 8 in the following:

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

Also of help:

https://www.parkingcowboys.co.uk/keeper-liability/

kingofsting

I bet the first letter (the NtK) was some way off being PoFA-compliant in 2014. Check it pedantically (word for word) against the Schedule 4 para 8 in the following:

Here's what the NTK stated: https://paste.pics/11ceaa895121598389d01d8cff174efe

looks like its ok to me but i'd appreciate any advice

Umkomaas

kingofsting wrote: »

Here's what the NTK stated: https://paste.pics/11ceaa895121598389d01d8cff174efe

looks like its ok to me but i'd appreciate any advice

Nope - that final paragraph does not meet the warning requirement of PoFA. As I said check it word for word against what's required in the Act.

kingofsting

Nope - that final paragraph does not meet the warning requirement of PoFA. As I said check it word for word against what's required in the Act.

I'm really sorry but I'm struggling to understand your point here - is the warning in final paragraph not explicit enough? The final para states:

We now request this amount is paid using one of the payment methods described overleaf. If within 28 days we have not received full payment or drivers details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keep of the vehicle. Your case will then be passed to our Debt Recovery Agent which may escalate to court proceedings to recover the amount owed. The overdue charge will increase to £150.00 in the first instance of further action.

The warning requirements of PoFA state:

(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

kingofsting

Is this the issue with the final paragraph? PoFA stating they have the right to recover the amount owed but PP stating they're increasing the amount to £150??

PP warning (final paragraph):
We now request this amount is paid using one of the payment methods described overleaf. If within 28 days we have not received full payment or drivers details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper of the vehicle. Your case will then be passed to our Debt Recovery Agent which may escalate to court proceedings to recover the amount owed. The overdue charge will increase to £150.00 in the first instance of further action.

Protection of Freedoms Act 2012:
(f) warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i) the amount of the unpaid parking charges has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

kingofsting

Updated WS: (point 9 is new and contains my interpretation of how the NTK i was apparently sent doesn't comply with POFA - I have to admit i don't understand the point kindly offered by Umkomaas so i may have missed the mark with this)

WITNESS STATEMENT
1. I am *****, of *******, the Defendant in this matter.

2. I deny every allegation set out in the Particulars of Claim.

3. On 4 August 2014, my wife and I visited Branscombe Beach, and parked our vehicle registration no, LG08 KJK in the car park.

4. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver and as this event has been resurrected from five years ago, it is impossible to expect me as the vehicle keeper to recall who might have been driving. It was either myself or my wife but we have visited this site several times and as such, it's only a 50/50 chance and thus, the balance of probabilities is not tipped either way and cannot be held to fall in favour of a Claimant who appears to be making an unlawful presumption about a registered keeper being assumed to be the driver. Without evidence, the Claimant would have to fully comply with the POFA 2012, Schedule 4, including providing prominent signs with 'adequate notice' of the parking charge, which was not even listed among the large font list of tariffs at the machine.

5. I did not hear, or receive anything, for over a year but then started to receive letters from BW Legal, acting on behalf of Premier Park Limited.

6. I did various online searches, at the time, and recall dismissing BW Legal as scammers, particularly as they were demanding such an unreasonably high amount of money. I felt vindicated in my decision to dismiss them as I received no further letters, or contact of any kind, from the Claimant on this matter.

7. I was then surprised to receive a letter before claim from the claimants representatives. I did some research into why I may have received this and it seems the Claimant and similar parking companies are submitting masses of court claims for old “parking charges” and are inappropriately using the court system as a form of debt collection.

8. I submitted a SAR to the Claimant, the results of which have been provided by post. The photographs of the vehicle do not show the driver or any of the signage they speak of, thus nulling any idea of a contract being agreed. Evidence of request for SAR and receipt of documents are attached as exhibits A and B.

9. The initial, Notification to Keeper, letter allegedly sent by the Claimant on 3 September 2014 fails to comply with the POFA 2012, Schedule 4, by not specifying the maximum additional costs they may seek to recover, and by not providing details of the 'discount' for payment within 14 days. Evidence is attached as Exhibit C.

10. The Claimant has failed to appropriately respond to my request of 10 September 2019 in which I requested confirmation of the time our ticket was purchased, evidence of the amount paid, and the amount of parking time paid for, as well as confirming the cost to park for 1 hour. Evidence of this request is attached as Exhibit D.

11. The signage at Branscombe Beach Car Park was also completely inadequate. At the time of the alleged contravention the signage was positioned on a very busy one-way entrance, on a roundabout, making it almost impossible to stop and read. Evidence of the position of the sign is attached as Exhibit E which is a Google Earth aerial photograph of the carpark; the position of the signage is circled in red.

12. The Claimant has added a disingenuous cost of £60 claiming it is for contractual costs pursuant to PCN Terms and Condition. The Claimant should know that to claim in excess of £100 for a parking charge on private land is disallowed under the CPRs, the Beavis case, the POFA and the CRA 2015, and that relief from sanctions should be refused. The Beavis case and POFA are further referenced in the Supplementary Witness Statement below.

I invite the Court to dismiss the claim and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

I believe that the facts stated in this Witness Statement are true.

Signature
Date

Umkomaas

Compare and contrast

PP's warning.

If within 28 days we have not received full payment or drivers details,

PoFA warning.

8 (2)(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—

So PP doesn't provide the full number of days the Act demands - by some way. So doesn't meet the requirements of PoFA.

You also need to understand the word 'given', which is defined in 8 (6)

A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

So you can see, a basic 28 days can be way off the mark.

But there are a host of other requirements that have to be met. You have the full NtK so do go through each PoFA requirement line by line and check whether the NtK meets each requirement precisely, in the way I have shown you above.

Write down each element where PP's NtK 'fails'. You should then have a compelling response to their implication that the keeper is liable for this ticket. The more you get your head around this, the better you can point the deficiencies out to a Judge at any hearing.

kingofsting

Thank you - I think I have found 4 issues with the NTK:

The Claimant fails to:
1. Confirm the specific period of parking to which the notice relates - 8 (2)
2. Inform the keeper of any discount' offered for prompt payments - 8 (2)
3. Provide the full number of days warning the Act demands - 8 (2)
4. Specify the period of parking and describe the charges and circumstances in which they arose 7 (2)

Here's how I've drafted point 9 of my WS:

9. The initial, Notification to Keeper, letter allegedly sent by the Claimant on 3 September 2014 fails to comply with the requirements of the POFA 2012, Schedule 4. The Claimant fails to: 1. Confirm the specific period of parking to which the notice relates. 2. Inform the keeper of any discount' offered for prompt payments. 3. Provide the full number of days warning the Act demands. 4. Specify the period of parking and describe the charges and circumstances in which they arose. Evidence is attached as Exhibit C.