NCP claim - HELP

Castle

Redx said:

No , it failed if posted on the 13th , because it is deemed delivered 2 days later , on the 15th December , plus 29 + 30 of November , 15 + 2 = 17 days

It should have arrived before it was even posted

13th December 2018 was a Thursday, so deemed date of delivery would be Monday 17th December 2018.

Redx

There you go then , even worse for NCP !! Lol 😜😆😋👍

KeithP

But it is the date that it arrived, not sent, that is important.

POFA states:

(4) The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(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.

Cobbler08

I had BW's 'Intent to Proceed' letter a couple of days ago, so I'm starting to draft my Witness Statement. I appreciate it's short.... But will it suffice? Tips appreciated  

IN THE COUNTY COURT

Claim No.: xxxx

Between

National Car Park Limited

(Claimant) 

- and -  

xxx

 (Defendant)

____________________

WITNESS STATEMENT OF DEFENDANT

____________________

1.      I am Mr xxxxxxx and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

 

2.      In my statement I shall refer to exhibits within the evidence supplied with this statement,

referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

 

Sequence of events

 

1.      It is admitted that I was the registered keeper of the vehicle in question but liability is denied.   I was not the driver and firstly heard about the parking charge by post, some weeks later.  There were two other people named on the car insurance policy, (See EXHIBIT C) and it was one of these individuals who was the driver at the time of the incident. I am under no legal obligation to provide their details to NCP.

 

2.      I cannot be held liable under any applicable law, as NCP have not complied with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4 ('the POFA').

 

Their ‘Notice to Keeper’ (EXHIBIT A) date of sending is 13/12/2018. In accordance with POFA 2012, this letter needed to have been received by myself on or before 13th December to be compliant with the 14-day notice period for Keeper Liability. (See EXHIBIT . Allowing 2 working days for delivery via post, I wouldn’t have received the letter until 17th December.

 

 

 

 

 

 

 

 

 

 

EXHIBIT A

 

NCP ‘Parking Charge Notice to Keeper’

Date of sending 13th December 2018

 

 

 

 

 

 

EXHIBIT B

 

Extract from Protection of Freedoms Act 2012 (c. 9)

SCHEDULE 4 – Recovery of unpaid parking charges

Document Generated: 2020-10-28

 

(4) The notice must be given by—

(a) handing it to the keeper, or leaving it at a current address for service for the

keeper, within the relevant period; or

(b) sending it by post to a current address for service for the keeper so that it is

delivered to that address within the relevant period.

(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days

beginning with the day after that on which the specified period of parking ended.

(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.

 

 

EXHIBIT C

 

Car Insurance Policy showing multiple named drivers.

Coupon-mad

No that won't suffice and looks nothing like the example linked in the NEWBIES thread.  Unless you mean you will use the example and those top bits are your changes.

nosferatu1001

Indeed
You have a very good example to look at and understnad why its importantto have that detail
And yes, you must read all of legislation, and people often miss the word given and hwy that is so important!

Cobbler08

Claim No.: XXXXXX                  Mr XXXXXXX (Defendant)                 Hearing date: TBC

 

Index

                        Content                                                                   Page number

Witness Statement	2-4
XX-01 – ‘Parking Charge Notice to Keeper’	5
XX-02 – Extract from Protection of Freedoms Act 2012 (c. 9) SCHEDULE 4 - Recovery of unpaid parking charges	6
XX-03 – Car insurance policy	7
XX-04 – Schedule of Costs	8
XX-05 - ParkingEye Limited v Beavis – Paragraphs 98, 193, and 198	9-10
XX-06 - Britannia v Crosby Approved Judgment - Southampton Court	11-16

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Claim No.: XXXXXX                  Mr XXXXXXX (Defendant)                 Hearing date: TBC

 

 

IN THE COUNTY COURT

Claim No.: XXXXX

Between

National Car Park Limited

(Claimant) 

- and -  

XXXXXXXXX

 (Defendant)

____________________

WITNESS STATEMENT OF DEFENDANT

FOR TELEPHONE HEARING ON xx/xx/xxxx

____________________

1.      I am Mr XXXXXXXX and I am the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

 

2.      In my statement I shall refer to exhibits within the evidence supplied with this statement,

referring to page and reference numbers where appropriate. My defence is repeated and I will say as follows:

 

Sequence of events

 

3.      It is admitted that I was the registered keeper of the vehicle in question but liability is denied.   I was not the driver and firstly heard about the parking charge by post, some weeks later.  There were two other people named on the car insurance policy, (exhibit xx-03) and it was one of these individuals who was the driver at the time of the incident. I am under no legal obligation to provide their details to NCP.

 

4.      I cannot be held liable under any applicable law, as NCP have not complied with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4 ('the POFA').

 

Their ‘Notice to Keeper’ (exhibit xx-01) date of sending is 13/12/2018. In accordance with POFA 2012, this needed to have been received by myself on or before 13th December to be compliant with the 14-day notice period for ‘Keeper Liability’. (exhibit xx-02). Allowing 2 working days for delivery via post, it’s deemed that I wouldn’t have received the letter until 17th December.

 

 

Claim No.: XXXXXX                  Mr XXXXXXX (Defendant)                 Hearing date: TBC

 

 

 

Abuse of process – the quantum

 

5. The Claimant has added a sum disingenuously described as 'damages/admin' or 'debt collection costs'. The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process - see exhibit xx-6 - transcript of the Approved judgment in Britannia Parking v Crosby (Southampton Court 11.11.19). That case was not appealed and the decision stands.

 

6. Whilst it is known that another case that was struck out on the same basis was appealed to Salisbury Court (the Semark-Jullien case), the parking industry did not get any finding one way or the other about the illegality of adding the same costs twice. The Appeal Judge merely pointed out that he felt that insufficient information was known about the Semark-Jullien facts of the case (the Defendant had not engaged with the process and no evidence was in play, unlike in the Crosby case) and so the Judge listed it for a hearing and felt that case (alone) should not have been summarily struck out due to a lack of any facts and evidence.

 

7. The Judge at Salisbury correctly identified as an aside, that costs were not added in the Beavis case. That is because this had already been addressed in ParkingEye's earlier claim, the preBeavis High Court (endorsed by the Court of Appeal) case ParkingEye v Somerfield (ref para 419): https://www.bailii.org/ew/cases/EWHC/QB/2011/4023.html ''It seems to me that, in the present case, it would be difficult for ParkingEye to justify, as against any motorist, a claim for payment of the enhanced sum of £135 if the motorist took the point that the additional £60 over and above the original figure of £75 constituted a penalty. It might be possible for ParkingEye to show that the additional administrative costs involved were substantial, though I very much doubt whether they would be able to justify this very large increase on that basis. On the face of it, it seems to me that the predominant contractual function of this additional payment must have been to deter the motorist from breaking his contractual obligation to pay the basic charge of £75 within the time specified, rather than to compensate ParkingEye for late payment. Applying the formula adopted by Colman J. in the Lordsvale case, therefore, the additional £60 would appear to be penal in nature; and it is well established that, in those circumstances, it cannot be recovered, though the other party would have at least a theoretical right to damages for breach of the primary obligation.''

 

8. This stopped ParkingEye from using that business model again, particularly because HHJ

Hegarty had found them to have committed the 'tort of deceit' by their debt demands. So, the Beavis case only considered an £85 parking charge but was clear at paras 98, 193 and 198 that the rationale of that inflated sum (well over any possible loss/damages) was precisely because it included (the Judges held, three times) 'all the costs of the operation'. It is an abuse of process to add sums that were not incurred. Costs must already be included in the parking charge rationale if a parking operator wishes to base their model on the ParkingEye v Beavis case and not a damages/loss model. This Claimant can't have both.

Claim No.: XXXXXX                  Mr XXXXXXX (Defendant)                 Hearing date: TBC

 

 

 

9. This Claimant knew or should have known, that by adding £60 in costs over and above the purpose of the 'parking charge' to the global sum claimed is unrecoverable, due to the POFA at 4(5), the Beavis case paras 98, 193 and 198 (exhibit - xx-5), the earlier ParkingEye Ltd v Somerfield High Court case and the Consumer Rights Act 2015 ('CRA') Sch 2, paras 6, 10 and 14. All of those seem to be breached in my case and the claim is pleaded on an incorrect

premise with a complete lack of any legitimate interest.

 

Claim No.: XXXXX                  Mr XXXXXXX (Defendant)                 Hearing date: TBC

 

 

 

EXHIBIT XX-01

 

NCP ‘Parking Charge Notice to Keeper’

Date of sending 13th December 2018

 

 

 

Claim No.: XXXXXXX                  Mr XXXXXX (Defendant)                 Hearing date: TBC

 

 

 

 

EXHIBIT XX-02

 

Extract from Protection of Freedoms Act 2012 (c. 9)

SCHEDULE 4 – Recovery of unpaid parking charges

Document Generated: 2020-10-28

 

(4) The notice must be given by—

(a) handing it to the keeper, or leaving it at a current address for service for the

keeper, within the relevant period; or

(b) sending it by post to a current address for service for the keeper so that it is

delivered to that address within the relevant period.

(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days

beginning with the day after that on which the specified period of parking ended.

(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.

 

 

 

Claim No.: XXXXXX                  Mr XXXXXX (Defendant)                 Hearing date: TBC

 

 

 

EXHIBIT XX-03

 

Car Insurance Policy showing multiple named drivers.

 

 

Claim No.: XXXXXX                  Mr XXXXXXX (Defendant)                 Hearing date: TBC

 

 

 

EXHIBIT XX-04

 

 

In the County Court at xxxxxx

Claim Number: xxxxxxxxx

Hearing Date: xx/xx/xxxx

 

DEFENDANT’S SCHEDULE OF COSTS

 

Ordinary Costs

 

Loss of earnings through attendance at court hearing XX/XX/XXXX: £95.00

 

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 £399.00

 

 

Signature

 

 

…………………….

 

 

Mr XXXXXXX

 

Xx/xx/xxxx

 

 

 

Claim No.: XXXXXXX                  Mr XXXXXXX (Defendant)                 Hearing date: TBC

 

 

 

EXHIBIT XX-05

 

ParkingEye Limited v Beavis – Paragraphs 98, 193, and 198

 

98. Against this background, it can be seen that the £85 charge had two main objects. One was to manage the efficient use of parking space in the interests of the retail outlets, and of the users of those outlets who wish to find spaces in which to park their cars. This was to be achieved by deterring commuters or other long-stay motorists from occupying parking spaces for long periods or engaging in other inconsiderate parking practices, thereby reducing the space available to other members of the public, in particular the customers of the retail outlets. The other purpose was to provide an income stream to enable ParkingEye to meet the costs of operating the scheme and make a profit from its services, without which those Page 43 services would not be available. These two objectives appear to us to be perfectly reasonable in themselves. Subject to the penalty rule and the Regulations, the imposition of a charge to deter overstayers is a reasonable mode of achieving them. Indeed, once it is resolved to allow up to two hours free parking, it is difficult to see how else those objectives could be achieved.

 

193. The penalty doctrine is therefore potentially applicable to the present scheme. It is necessary to identify the interests which it serves. They are in my view clear. Mr Beavis obtained an (admittedly revocable) permission to park and, importantly, agreement that if and so far as he took advantage of this it would be free of charge. ParkingEye was able to fulfil its role of providing a traffic management maximisation scheme for BAPF. The scheme met, so far as appears, BAPF’s aim of providing its retail park lessees with spaces in which their customers could park. All three conditions imposed were directed to this aim, and all were on their face reasonable. (The only comment that one might make, is that, although the signs made clear that it was a “Customer only car park”, the Parking Charge of £85 did not apply to this limitation, which might be important in central Chelmsford. The explanation is, no doubt, that, unlike a barrier operated scheme where exit can be made conditional upon showing or using a ticket or bill obtained from a local shop, a camera operated scheme allows no such control.) The scheme gave BAPF through ParkingEye’s weekly payments some income to cover the costs of providing and maintaining the car park. Judging by ParkingEye’s accounts, and unless the Chelmsford car park was out of the ordinary, the scheme also covered ParkingEye’s costs of operation and gave their shareholders a healthy annual profit.

 

198. The £85 charge for overstaying is certainly set at a level which no ordinary customer (as opposed to someone deliberately overstaying for days) would wish to incur. It has to have, and is intended to have, a deterrent element, as Judge Moloney QC recognised in his careful judgment (para 7.14). Otherwise, a significant number of customers could all too easily decide to overstay, limiting the shopping possibilities of other customers. Turnover of customers is obviously important for a retail park. A scheme which imposed a much smaller charge for short overstaying or operated with fine gradations according to the period of overstay would be likely to be unenforceable and ineffective. It would also not be worth taking customers to Page 88 court for a few pounds. But the scheme is transparent, and the risk which the customer accepts is clear. The fact that, human nature being what it is, some customers under-estimate or overlook the time required or taken for shopping, a break or whatever else they may do, does not make the scheme excessive or unconscionable. The charge has to be and is set at a level which enables the managers to recover the costs of operating the scheme. It is here also set at a level enabling ParkingEye to make a profit. Unless BAPF was itself prepared to pay ParkingEye, which would have meant, in effect, that it was subsidising customers to park on its own site, this was inevitable. If BAPF had attempted itself to operate such a scheme, one may speculate that the charge might even have had to be set at a higher level to cover its costs without profit, since ParkingEye is evidently a specialist in the area.

 

1505grandad

In para 4 suggest including the date of the parking event so the Judge has all the facts without having to resort to the NtK evidence to complete calculations if he/she wishes to check.

I cannot see the Statement of Truth.

Also Exhibit #6 not mentioned at the end.

Coupon-mad

I am not seeing anything in the sequence of events, about what happened that day, as reported to you by the driver, and what the issues are.  I can't even tell if this is a pay & display car park because there are no facts; not even whether it's about a fluttering ticket, a short overstay with grace period, or a VRM keypad error, or what.  The Judge will think the same...the WS is meant to clarify the facts and narrow the issues.

Also you need some more words and evidence here:

3.      It is admitted that I was the registered keeper of the vehicle in question but liability is denied.   I was not the driver and firstly heard about the parking charge by post, some weeks later.  There were two other people named on the car insurance policy, (exhibit xx-03) and it was one of these individuals who was the driver at the time of the incident. I am under no legal obligation to provide their details to NCP.

This is where you add as an exhibit, Henry Greenslade's words about KEEPER LIABILITY from the POPLA Annual Report 2015, and a copy of Excel v Smith (on appeal from Manchester court), the transcript for which is in the Parking Prankster's case law pages, and you refer to it here and point out that it is persuasive because it was on appeal and confirmed that a keeper cannot be assumed to be the driver, nor held liable outwith the POFA, nor bound by a twisted interpretation of the law of agency for the actions of another driver. This is what the POFA Schedule 4 was enacted for.  In the significant number of cases where parking firms fail to invoke it - due to their own choice or delays - whatever the reason might be is irrelevant - they have no cause of action in law against a keeper and should haev cancelled the PCN before getting to court stage.

 

4.      I cannot be held liable under any applicable law, as NCP have not complied with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4 ('the POFA').
Their ‘Notice to Keeper’ (exhibit xx-01) date of sending is 13/12/2018. In accordance with POFA 2012, this needed to have been received by myself on or before 13th December to be compliant with the 14-day notice period for ‘Keeper Liability’. (exhibit xx-02). Allowing 2 working days for delivery via post, it’s deemed that I wouldn’t have received the letter until 17th December.

This is where you should be pointing out that the Notice itself is (presumably) also not worded to attempt to be a POFA one, given that it misses out the keeper liability after 29 days warning (we expect) in 8(2)f or 9(2)f of Sch4.  Make it easy for the JUdge by quoting the Act and showing them why the NTK is non-POFA in words as well as dates...

Cobbler08

Thank you for your comments Coupon. I have a question regarding your point re sequence of events. 
The driver entered the car park, parked, (didn't get a pay & display ticket) nipped into a shop and left again. The ANPR shows the car was in the car park for 16 minutes. Do I need to include this information in my witness statement, or just play dumb, stating all I know from the SAR is that she entered the car park for 16 minutes then left? Am I breaking the law or committing perjury by not declaring everything I know about the event? My feeling is that if I admit that the driver parked the car and left the vehicle, the Claimant can use this as an angle..... 

You said previously "how do 2 images from ANPR cameras at the entrance, show them what she did?" - I appreciate this was in response to my 'grace period' question, but does this apply to the wider statement above? 

• Ok thank you both. Is the grace period a defence in my case though? As the driver (who wasn't me) parked, went into a shop to collect an item, then got back into the car and left (they tell me they believe it was 10 minutes or less but can't guarantee it)
  Looking at the BPA website, it seems that the grace period refers to either a) someone not parking i.e. deciding whether they want to park or not) or b) has entered the contract, i.e. paid for 1hr, returns to car after 1hr then is allowed 10 minutes grace period to leave the car park. 

  ReportQuoteThanks
• 13 November at 3:16PM
  Coupon-madForumite90.5K POSTS
  Right...and how do 2 images from ANPR cameras at the entrance, show them what she did?