NCP parking ticket- I won!

ParkingMad

my wife sent them an email of who was driving the vehicle. 
Now NCP has rejected the email without even responding back to my wife's email, now debt collector agency has been emailing  and texting her about a debt, she just called the debt collector agency now to find out what debt it is, only to discover it was the NCP ticket, they said the email about who was driving was rejected.

This is not only unreasonable but is also unlawful because the POFA 2012 allows keepers to transfer liability to the driver, yet the parking firm rejected her email transferring liability, as she was allowed to do.  POFA Schedule 4 is clear that it is not legal to do this.  They were suing the wrong person and they knew this from the outset, which must meet the high bar for unreasonable conduct.  This must be said in her new WS. Attach a copy of her 'sent' email where she transferred liability and also say what she was told about it being 'rejected'.

Eminowa

@ParkingMad. Thanks for this information. So the link u sent me was exactly the same wording on the link I used to get the judge to assess the hearing. So I didn't know what else to send as a witness statement to the court, so I changed the date of my previous WS and sent it to th court,  as they also got evidence that the solicitor acted unreasonably.
I will do as you have instructed, and copy the same link into a new WS together with the reasons why they solicitor acted unreasonably together with my cost, and also stating that I m shocked the the solicitor are trying to still claim from me when they acted unreasonably from the unset.
My only problem by Monday it would be less than 7days to have sent our WS over, would the court still agree it, if I was less than 7days as stated in the Directions.
Again the hearing as been changed now to face to face hearing now in the court, so we need to attend in person 

ParkingMad

As it is late, I am thinking don't make it a Witness Statement. Instead, head your emailed document:

Skeleton argument and costs assessment

(not 'witness statement')

A skeleton argument and costs assessment can be added just days before a hearing.  And it doesn't need signing, nor does it have a statement of truth.  Sending a skeleton argument and costs assessment a few days before is fine.

Put in the point about the White Book and attach Schedule 4 of the POFA and the costs assessment. POFA paragraph 5 says the right to pursue the keeper ceased to apply when she provided the name and address of the driver::

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

Conditions that must be met for purposes of paragraph 4

5(1)The first condition is that the creditor—

(a)has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but

(b)is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.

(2)Sub-paragraph (1)(b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper."

Attach a separate list of the unreasonable conduct by the Claimant (not by the solicitors). You need to be saying that the Claimant acted unreasonably from start to finish and knew all along they were pursuing the keeper unlawfully, because she had transferred liability months before. The keeper has wasted weeks of her life on this and is extremely distressed by what can only be described as a vexatious pursuit of a vulnerable person who the Claimant knew was not liable.  There is no option in POFA to refuse to transfer liability at pre-action stage.

Show us what you intend to send, first.

Eminowa

@parkingmad. Thank you so much. I will do just that. And I will paste it here....its weekend,  I know we all got families n life. But I do appreciate the forum. Thanks 

Would like me to still talk about the Claimant claiming cost as well?

ParkingMad

Eminowa said:

Would like me to still talk about the Claimant claiming cost as well?

No, not in a skeleton argument and costs assessment. Make sure the solicitors are copied into the court email and head it with the claim number, date and time of hearing and the words SKELETON ARGUMENT AND COSTS ASSESSMENT OF DEFENDANT.

Save that for the hearing and say verbally how upset all this has made her.

Eminowa

         here is my sketekon argument , cost n white notes                                                                                                                                                            XXth February 2022

XXXXXXX County Court

XXXXXX,

OXXXXXX,

XXXXXX

XX4 6XX

 

In the County Court at XXXX

 

~~ To be put before procedural judge ~~

 

In the matter of

XXXXXXXX v XXXXX

Claim Number :  XXXXXXX

 

Dear Sir or Madam,

I have been advised by the bwlegal on XX/XX/20XX that the listed hearing for this claim

(listed for XX/XX/20XX) was vacated and I understand that this is due to the Claimant

discontinuing the claim.

CPR r.38.6 states that the claimant is liable for the defendant's costs after discontinuance (r.38.6(1)) but that this does not apply to claims allocated to the small claims track (r.38.6(3)). However, the white book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))." On this basis I would like to request a costs order to be made against the Claimant given that Premier Park Ltd has behaved unreasonably by tactically discontinuing this claim the day before the hearing. I ask the Court to treat this letter as an application as contained in CPR r.23.3(2)(b)

The Defendant had significant costs to prepare the Defence and prepare attendance of the hearing and the costs claimed are shown in the attached costs schedule.

 

Yours faithfully,

XXXXXXXXX

Defendant

 

 

 

 

 

 

Schedule 4 of the POFA ( Exibit q)

POFA paragraph 5 says the right to pursue the keeper ceased to apply when she provided the name and address of the driver

 

5(1)The first condition is that the creditor—

(a)has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but

(b)is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.

(2)Sub-paragraph (1)(b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper."

 

Costs assessment.

 

In the County Court at XXXXXXX

Claim Number: XXXXXXX

Hearing Date: XX February 20XX

 

DEFENDANT’S SCHEDULE OF COSTS

 

Ordinary Costs

 

 

Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11

Research, preparation and drafting documents (16 hours at Litigant in Person rate of £19 per hour): £304

 

 

 

TOTAL COSTS CLAIMED £304

 

XXXXXXXXXXXX

 

 

                                                               Skeleton argument and costs assessment

 

1. I was claiming for my cost to prepare the defence and attendance of the hearing as the claimant because the claimant knew who was driving from the onset but has refused to transfer liability to the driver and has acted unreasonably from start to finish.

2.  The claimant behaviour was not only unreasonable but is also unlawful because the POFA 2012 allows keepers to transfer liability to the driver, yet the claimant had rejected the Defendant email transferring liability, as she was allowed to do.  POFA Schedule 4 is clear and it  is unlawful for the claimant to refused to transfer liability (Exhibit x)

3. The claimant was suing the wrong person and they knew this from the outset, (Exhibit k). and this meets the high bar for unreasonable conduct by the claimant.

4. The claimant had also rejected to transfer liability to the and were demanding both the signature of the driver and the defendant which does not conform to schedule 4 of POFA requirements paragraph 5(1a), 5(1b)  (Exhibit a)

5. You need to be saying that the Claimant acted unreasonably from start to finish and knew all along they were pursuing the keeper unlawfully because she had transferred liability months before

6. The Defendant (the vehicle keeper) who is still grieving her late mother and still recovering from a major brain operation has suffered and wasted weeks of her life on this and is extremely distressed by what can only be described as a vexatious pursuit of a vulnerable person who the Claimant knew was not liable.  There is no option in POFA to refuse to transfer liability at pre-action stage. (Exhibit h)

 

4. The Claimant acted unreasonably by refusing to transfer liability to the driver unless the defendant produce a signature of the driver (Exhibit 16). Providing the Signature of the Driver hasn’t been part of schedule 4 of POFA requirements paragraph 5(1a), 5(1b)  (Exhibit 17).

Conditions that must be met for purposes of paragraph 4

5(1)The first condition is that the creditor—

(a)has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but

(b)is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.

(2)Sub-paragraph (1)(b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper.

17.      The Claimant continued to threaten the defendant with court proceedings, CCJ and debt collection activities if the name and signature of the driver isn’t produced within 14days.

18.      The Defendant wrote to the Claimant on the 27th of May 2021 and also the 7th of July 2021, stating she wasn’t the driver of the vehicle, reminding them of breaching KADOE as well as DPA 2018 (Exhibit 18). But the claimant still acted unreasonably by issuing a county court claim against her and continued to threaten her with CCJ.

19.      The defendant also made it clear in her email to the Claimant that they would be facing a counterclaim for £500 for harassment and discrimination of a disabled person if they continue to process her data and process with a court claim. (Exhibit 18)

THE EFFECT OF THE DEMANDS ON MYSELF AND MY FAMILY:

21.      Nothing I ever did would stop it. The threats were threefold in nature: those to start legal proceedings against me could cause me considerable anxiety, distress and harm, to having bailiffs turn up at my door to remove goods and having a CCJ being recorded at the credit reference agencies for 6 years.

22.      Not only a CCJ would harm my Mental health, but I could also lose my belongings through a debt collector.  What matters most to me is the threat of my credit rating being destroyed causing significant problems applying for loans and mortgages.  I wrote letter after letter and repeatedly asserted that I was not the driver - and I named who was and properly provided their address for service - but to no avail.   The majority of my letters received no response at all - especially not from the Claimant. I had received letters requesting me to provide a signature of the driver which wasn’t feasible at the moment as I was recovering from major brain surgery and I was bed-bound. Besides being bed bound, I was also at high risk of contracting and dying from Covid-19, But then the demands and threats continued. I wasted so many hours of my life on this, instead of grieving my late mum and focusing on my health. I was brought to a state of considerable anxiety and distress on multiple occasions, not knowing whether I would end up with a County Court judgment and a bailiff would come to my house at any time to remove all my goods. whether I missed a court claim form such that legal proceedings might have already been brought upon me or it had already been reported to a credit rating agency. (Exihibit z ,Exihibit y, Exihibit P)

23.      Due to the fact that I was still grieving my Mom and also recovering from my Brain surgery, and was in a lot of pain and on a very high dose of Opioid (pain killers) (Exhibit 22), my anxiety level heightened and I became depressed due to the claimant unreasonable behaviour and conduct. I started experiencing panic attacks each time I hear my bell rings. I honestly believed they were going to come knocking on my door and clamping my car.

25.      Paragraph 3.5 of the guidance on section 56 and Schedule 4 of POFA by law doesn’t require a ‘signature of the driver’ for a registered keeper to transfer liability. In this case, the defendant was provided both the claimant and their solicitor (Bwlegal) the name and serving address of the vehicle, but they have refused to abide by the law to transfer liable without a signature. (Exhibit 19). Up until the date the claimant decided to discontinue the case they refused to transfer liability to the driver.

26.      The claimant also acted unreasonably because Paragraph 9.2 of the guidance on section 56 and Schedule 4 of POFA states that If the driver's details are provided by the registered keeper, then the landholder must pursue the driver for the unpaid parking charge, and the registered keeper cannot be liable for the charge. But the Claimant has chosen to ignore this and kept chasing the defendant for an unpaid parking ticket. ( Exhibit 20)

27.      On the 17th of July, the claimant wrote to me, stating they have received a copy of my  Defence. The claimant stated that they are willing to proceed with the matter in court, regardless of my reason for disputing the claim. The claimant proceed to inform me that they are confident that the court would find it in their favour in the hearing, that a CCJ would be entered against me together with additional court cost and that they are giving me up until the 26th of July to pay the money in full. (Exhibit 21).  The claimant unreasonably behaviour and conduct in the letter gave me a panic attack.

28.      Before the commencement of a legal proceeding, on the 17th of May 2021, I had provided the claimant with the details of the driver but was hit with a reply asking me to produce both my name and the name of the driver together with our signatures.

29. The Claimant was fully aware of who the driver was, but acted unreasonably tried to mislead me into thinking that liability cannot be transferred to the driver until I produce the drivers signature, which isn’t a POFA requirement for register keeper. (Exihibit )

30.      The claimant has acted unreasonably by discontinuing the case 4 working days before the hearing when the defendant was ready for the hearing. (Exhibit)

31. The claimant knew from the start to finish who the driver was, and also knew they cannot rely on any applicable law to hold the defendant liable and has utterly wasted the courts time and also the defendant’s time, ruined her health and peace of mind for no justified reason, from the moment they/their agent knew she wasn’t the driver at the time of the convention.

31.      As such, it is without a doubt they are engaging in unreasonable conduct in litigation and still continue with the same pattern of behaviour that constitutes a course of conduct amounting to harassment and intimidation. This case, without a doubt, falls comfortably within those types of cases in which the Court should exercise its powers under CPR 27.14(2)(g) and give out the strongest sanctions allowable.

My fixed witness costs - ref PD 27, 7.3(1) and CPR 27.14

33.     As a litigant-in-person I have had to learn relevant law from the ground up and spent a considerable time researching the law online, processing and preparing my defence plus this witness statement.  I ask for my fixed witness costs.  I am advised that costs on the Small Claims track are governed by rule 27.14 of the CPR and (unless a finding of 'wholly unreasonable conduct' is made against the Claimant) the Court may not order a party to pay another party’s costs, except fixed costs such as witness expenses which a party has reasonably incurred in travelling to and from the hearing (including fares and/or parking fees) plus the court may award a set amount allowable for loss of earnings or loss of leave.

 

Defendant Schedule of costs

In the County Court at XXXXXX

Claim Number: XXXXXX

Hearing Date: XX February 202X

 

DEFENDANT’S SCHEDULE OF COSTS

 

Ordinary Costs

 

 

Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11

Research, preparation and drafting documents (16 hours at Litigant in Person rate of £19 per hour): £304

 

 

 

TOTAL COSTS CLAIMED £304

ParkingMad

That document says 'Premier Park' (a different parking firm) instead of National Car Parks Ltd and a Skeleton Argument must be headed SKELETON ARGUMENT and is not written as a letter.  So remove this:

  

"~~ To be put before procedural judge ~~"

"Dear Sir or Madam"

"Yours faithfully,

XXXXXXXXX

Defendant"

 

Move the body of what you had in that letter,

 - changing Premier Park to National Car Parks Ltd - into the Skeleton argument itself, attaching a screenshot of the POFA schedule 4 (with paragraph 5 circled) and 

- a copy of the email the keeper sent transferring liability, plus 

- a copy of the BPA's article in Parking News about who is liable and when.

ParkingMad

Also this can't be copied:

"5. You need to be saying that the Claimant acted unreasonably from start to finish and knew all along they were pursuing the keeper unlawfully because she had transferred liability months before"

And the numbering under that is all over the place and seems to be repeating info from the last witness statement.  Remove all the stuff from the second number 4 onwards that is just witness statement stuff.

A skeleton is not a witness statement and shouldn't say 'I did this' anywhere.  Just the legal arguments and attachments.

Eminowa

                                                                                                                                                                                                                                      20th February 2022

 

In the County Court at XXXXX

                                                                                   SKELETON ARGUMENT 

 

In the matter of

XXXXXX v XXXXXX

Claim Number :  XXXXXX

 

I have been advised by the bwlegal on XX/XX/20XX that the listed hearing for this claim

(listed for XXXX/20XX) was vacated and I understand that this is due to the Claimant

discontinuing the claim.

CPR r.38.6 states that the claimant is liable for the defendant's costs after discontinuance (r.38.6(1)) but this does not apply to claims allocated to the small claims track (r.38.6(3)). However, the white book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))." On this basis I would like to request a costs order to be made against the Claimant given that National Car Park has behaved unreasonably by tactically discontinuing this claim 4 working days before the hearing. I ask the Court to treat this letter as an application as contained in CPR r.23.3(2)(b)

The Defendant had significant costs to prepare the Defence and prepare attendance of the hearing and the costs claimed are shown in the attached costs schedule.

 

Schedule 4 of the POFA ( Exhibit q)

POFA paragraph 5 says the right to pursue the keeper ceased to apply when she provided the name and address of the driver

 

5(1)The first condition is that the creditor—

(a)has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but

(b)is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.

(2)Sub-paragraph (1)(b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper."

 

Costs assessment.

 

In the County Court at XXXXX

Claim Number: XXXXXX

Hearing Date: XX February 202X

 

DEFENDANT’S SCHEDULE OF COSTS

 

Ordinary Costs

 

 

Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule 44.11

Research, preparation and drafting documents (16 hours at Litigant in Person rate of £19 per hour): £XXX

 

 

 

TOTAL COSTS CLAIMED £XXXX

 

XXXXXXXXXX

 

 

                                                                

1. I was claiming for my cost to prepare the defence and attendance of the hearing as the Defendant, because the claimant knew who was driving from the onset but has refused to transfer liability to the driver and has acted unreasonably from start to finish.

2.  The claimant behaviour was not only unreasonable but is also unlawful because the POFA 2012 allows keepers to transfer liability to the driver, yet the claimant had rejected the Defendant email transferring liability, as she was allowed to do.  POFA Schedule 4 is clear and it is unlawful for the claimant to refused to transfer liability (Exhibit x)

4. The claimant was suing the wrong person and they knew this from the outset and this meets the high bar for unreasonable conduct by the claimant.

5. The claimant had also rejected to transfer liability to the driver and were demanding both the signature of the driver and the defendant which does not conform to schedule 4 of POFA requirements paragraph 5(1a), 5(1b)  (Exhibit a)

6. The Claimant acted unreasonably from start to finish and knew all along they were pursuing the keeper unlawfully because she had transferred liability months before

7. The Defendant who is still grieving her late mother and still recovering from a major brain operation has suffered and wasted weeks of her life on this and is extremely distressed by what can only be described as a vexatious pursuit of a vulnerable person who the Claimant knew was not liable.  There is no option in POFA to refuse to transfer liability at pre-action stage. (Exhibit a)

 

 

 

 

ParkingMad

I would send to both courts and the solicitor by email (one email) and also a printed version sent by post to Telford court 1st Class on Monday.

An in-person hearing is better if the Judge has printed copies of the skeleton and costs assessment, plus a copy of the email where she transferred liability, plus the POFA schedule 4 paragraph 5 printed out in full. 

Plus how about attaching to this small bundle, that BPA article from Parking News in 2020 or so, where their legal team at parking law specialists SCS Law concluded that the correct interpretation of POFA is that a keeper can provide the name and address of driver at any time until court action begins and liability moves to the driver:

http://portfolio.cpl.co.uk/Parking-News/395/26/

Append that to the skeleton argument and costs assessment too.