Claim Submission Form Received - Acknowledgement filed...now to prepare the defence

gbbe

Hi Everyone,

So I cant actually believe how many people are chased for unfair parking fines and taken to court (and win). So I am hoping everyones advice can be used to help me win.

Story: (I'll try be brief and to the point)
About 5 years ago my now husbands elderly relative borrowed my car for a few weeks, apparently overstayed the free period in a retail car park (as i am guessing he got talking to someone when shopping - we had receipts to prove he was a genuine customer of the retail park) which I am guessing was only 30 minutes as with the time stamps he was in the car park less than an hour.

18 days later they issued a PNC to me the RK which will have arrived some 3 weeks after the car was in the retail park. (reading the newbie post as the NTK wasnt issued for 18 days and then didnt arrive for roughly 3 weeks they cant persue me as the RK?)

I appealed the PNC on the following grounds:

• I would firstly like Excel Parking to prove they have authorisation to issue tickets on the land by providing a contract with the landowner.
• Secondly, as per The Unfair Terms Consumer Contracts Regulations 1999 I believe the £XX.00 parking charge to be punitive and therefore should not be enforced.(i now know this argument doesnt stand)
• Thirdly, I do not believe the claim to be a genuine pre-estimate of loss, and as such is not enforceable. If the Claimant believes otherwise I would like to see evidence supporting this.
• I also believe the ANPR to be flawed as the notice states the vehicle in question left the carpark at XX:YY and the driver has also provided a receipt proving they were still paying for their shopping in XXXX Ltd at the exact time XX:YY (receipt included).
• I also have a receipt from the driver showing they paid for their shopping in CCCC Ltd on the XXX Retail Park at 55:55 (copy included). This leaves a 10-minute window between paying on the XXX Retail Park and allegedly entering YYY Retail Park. The journey is 1.9miles which would take 10 minutes with absolutely no traffic, if you have ever driven through AAA in rush hour on a weekday you will know that there is a vast amount of traffic, even the queue to leave the XXX Retail Park takes at least 7 minutes to navigate. Meaning there was no way anyone could have paid in CCC Ltd, carried the shopping to the car, left the XXX Retail Park and then entered YYY Retail Park all within 10 minutes, further supporting my claim that the ANPR is flawed. There is also no signage to state ANPR cameras are being used.
• Furthermore, due to the failure by Excel Parking to comply withthe keeper liability requirements (paragraph 6 of Schedule 4) by not detailing a discount of at least 40% if paid within 14 days and that if unpaid for 28 days and the name and addresses of the driver has not been given “the creditor” will be entitled to recover the charge from the registered keeper, I the registered keeper cannot be held to account for the alleged debt of the driver. The parking company can therefore only pursue the driver. As the keeper of the vehicle I decline, as is my right, to provide the name of the driver at the time. As the parking company have neither named the driver nor provided any evidence as to who the driver was I submit I am not liable to any charge.
• Finally, the driver of the vehicle did also display a valid ticket provided by another member of the public upon them leaving the carpark before the ticket had run out (no where does it say that you cant give someone else your ticket)

My understanding is they then had 28 days to respond to the appeal.

About 3 months later I received a letter backdated at the top to the 28th day they had to respond saying pay the fine, or words to that effect. No further appeal options were given.

I ignored the letter as it was after the 28 day period and heard nothing more of it for 5 years until a LBC letter 2 months ago and a Claim Form this week


Actions:
1) I am writing a complaint to the shop we have receipts for to say the driver was a genuine customer, and see if they will step in (it was such a long time ago so i dont know if they will - i do have a copy of the receipt from the time)
2) Also writing a complaint to the landowner, probably a waste of time as others have contacted them in the past but i can try
3) I am putting in an SAR request to Excel Parking (i do not have their origional letter or their letter ignoring my appeal as they were from 5 years ago)
4) Letter to EP solicitor to hold action as have submitted an SAR - not expecting them to hold action just doing it as a formality

That is as far as i have got.


Questions:
1) The elderly relative that was driving the car has now passed away (death certs can be provided) is it even worth mentioning it was him driving as I have no physical proof or just fight as the RK?
2) It is likely he will have taken his blue badge and displayed that in the window of the vehicle, does that make a difference?
3) Can I use the fact the NTK wasnt issued for 18 days and then didnt arrive for roughly 3 weeks they cant persue me as the RK? They also didnt reference the POFA 2012 wording at all so according to the Newbie thread I should point this out as the RK is not liable

Any other pointers and advice is most welcome (hope I have complied with all posting rules)

Coupon-mad

Aargh, you should have named the deceased driver at LBC stage!

I am sorry to hear that the relative subsequently died...my condolences...but eeek, this would have been so easy to see off by naming them with their address at the time when they drove the car 5 years ago, then let Excel stew.

18 days later they issued a PNC to me the RK which will have arrived some 3 weeks after the car was in the retail park. (reading the newbie post as the NTK wasnt issued for 18 days and then didnt arrive for roughly 3 weeks they cant persue me as the RK?)

True!

You will win it on that alone if the Judge understands, but this now means you will have to write a defence, and spend time filling in the court DQ form and reading Directions from the court, and spend a few hours preparing a WS and evidence, and take a day off work to attend your local court later this year. For a PCN that could have been seen off by naming the deceased driver with their last known address(!) before court action commenced.

It is likely he will have taken his blue badge and displayed that in the window of the vehicle, does that make a difference?

Yes and YES.

Disabled persons MUST be allowed more time than the arbitrary time limit, and this is a legal duty on Excel, even when they have no way to identify such people as individuals or find out about their needs. There is something called indirect discrimination in the Equality Act 2010, and this is it. A failure to make 'reasonable adjustments' such as extending 'fixed time limit' policies for disabled people, and failure to put a system in place and communicate it in the signage so that such people have a mechanism to claim more shopping time.

Drop this (eeeek, again!):

Finally, the driver of the vehicle did also display a valid ticket provided by another member of the public upon them leaving the carpark before the ticket had run out (no where does it say that you cant give someone else your ticket)

And drop both of these:

Secondly, as per The Unfair Terms Consumer Contracts Regulations 1999 I believe the £XX.00 parking charge to be punitive and therefore should not be enforced.(i now know this argument doesnt stand)

Thirdly, I do not believe the claim to be a genuine pre-estimate of loss, and as such is not enforceable. If the Claimant believes otherwise I would like to see evidence supporting this.

Also, are you saying the driver visited twice? A double visit?

Was it pay & display or free?

didgeridoooo

Well done getting the thread up, you did a more thorough job than I thought you would too!

With Coupon-Mad's eye on the above you're in very good hands. That Equality Act 2010 is one I am using and it has stronger relevance to your case than mine.

Shame you didn't see this off, but get your head in gear and you will do in court . I forget the exact percentage of successes on this board, but I know it had lots of 9s in it.

KeithP

What is the Issue Date on your County Court Claim Form?

Your thread title seems to say that you have filed an Acknowledgment of Service.
On what date did you do that?
Did you do it online - on the MCOL website?

gbbe

KeithP wrote: »

What is the Issue Date on your County Court Claim Form?

Your thread title seems to say that you have filed an Acknowledgment of Service.
On what date did you do that?
Did you do it online - on the MCOL website?

I filled the acknowledgement of service yesterday after receiving the claim form from the court and yes I did it via mcol

Coupon-mad

What is the Issue Date on your County Court Claim Form?

gbbe

Coupon-mad wrote: »

What is the Issue Date on your County Court Claim Form?

13th Jan 2020

KeithP

gbbe wrote: »

13th Jan 2020

With a Claim Issue Date of 13th January, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 17th February 2020 to file your Defence.

That's over three weeks away. 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 could 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. No need to do anything on MCOL, but do check it after a few days to see if the Claim is marked "defence received". If not, chase the CCBC until it is.

Having filed your Defence, there is more to do...

1. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire. Nothing of interest there. Just file it.
   
2. Wait for your own Directions Questionnaire from the CCBC, or download one from the internet, and then complete it as described by bargepole in his 'what happens when' post.
3. The completed DQ should be returned by email to the CCBC to the same address and in the same way as your Defence was filed earlier.
4. Send a copy of your completed DQ to the Claimant - to their address on your Claim Form.

gbbe

Coupon-mad wrote: »

Aargh, you should have named the deceased driver at LBC stage!

Great okay plenty to go at here thank you very much! I didn't even think of naming them when I got the LBA. Would it be worth contacting them now and letting them know to see if they would cancel knowing they would lose?

I will include the following points in my defence:

1) incorrect service to keeper (as previously mentioned)
2) A failure to make 'reasonable adjustments' such as extending 'fixed time limit' policies for disabled people
3) failure to put correct signage detailing how to claim extended time as a blue badge holder

Question
1) will I need to prove that the relative was driving the car?
2) will I need to prove he was a blue badge holder?
3) do I include a death certificate?

Also, are you saying the driver visited twice? A double visit?

No just one visit

Was it pay & display or free?

It was free for 30 minutes then pay & display

Coupon-mad

1) incorrect service to keeper (as previously mentioned)
2) A failure to make 'reasonable adjustments' such as extending 'fixed time limit' policies for disabled people
3) failure to put correct signage detailing how to claim extended time as a blue badge holder
4 State that you were not the driver and cannot be legally liable
5 no landowner authority - as standard - seen in ALL defences you read!
6 Consumer Rights Act abuse of process - seen in ALL defences you read!

Question
1) will I need to prove that the relative was driving the car?

Not yet - AT WITNESS STATEMENT STAGE - try to show some evidence that you were not/that they were insured to drive. Also your appeals at the time will show that the Claimant KNEW this, won't they, so they are evidence that the Claimant holds that will help your side.

2) will I need to prove he was a blue badge holder?

A good idea at WS stage, as no evidence goes with the defence, NONE.

3) do I include a death certificate?

At WS stage, good idea, along with the standard stuff we always say people must send as evidence.

You need to read the NEWBIES thread including the section under the red heading, with links to posts by two legally qualified posters, walking you through what to do and when.

gbbe

Brilliant thank you Keith P and Coupon-mad! This is such great info! I will search the threads here too for defence templates and will post here prior to submission.

I plan on doing it this weekend well ahead of the deadline.

Lots of letters to write this weekend and lots of evidence to search for.

Also with the relative being the driver his address was 5 minutes from the retail park and mine is 45 miles away so it makes more sense he would be driving the car not me 🤞🤞