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Newbie, 1st Post, Notice of County Court Claim

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echo8echo8 Forumite
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MoneySaving Newbie

Hi all

Yesterday I spent hours looking through the newbie sticky and various posts, but could really do with some help and guidance here, the defence template, lovely as it is doesn’t make a lot of sense to me, clearly we need to edit it to be relevant but what are the most important parts and can they be reworded into simple concise terms?

We are at the stage now where a notice of county court claim has recently been received. Unfortunately, we appear to have arrived at the party a little late and have missed out on some advice and possibly vital steps.

 I’m sorry if this is a bit wordy but if I describe what happened and the sequence of events perhaps someone could point me in the right direction and advise whether a defence is worth pursuing.

Here goes

On 17/10/2019. My wife entered an NCP car park in Worthing that had previously been operated by NCP as a pay and display car park.

She was diagnosed in July 2001 with MS whilst not severe and of a relapse remitting nature, these attacks over time have led to her having to give up work and over the last five years significant impairment of her cognitive functions.

She attempted to pay to park.

She was already late having arranged to meet a friend and watch a film in the theatre adjacent to the car park. The machine requires you to input Debit card details, card number, expiry date, pin? etc, Duration to park (Why – when its ANPR operated, presumably so you over estimate, or if you underestimate you get a PCN -  WIN WIN for NCP !!!). oh, and your registration number.

However, after several failed attempts, using several different debit cards, going backwards and forwards to the car on several occasions to check the registration and try to find her glasses, and starting the whole process over and over again, with the machine timing out or stating ’NOT VALID’ on at least four occasions. (she wasn’t sure whether it was the machine or her card or the registration).

In Confusion she gave up and drove out of the car park, having not been able to pay to park probably mainly due to her MS which now has an affect on her cognitive functions.

She parked in the street adjacent to the car park which had pay and display points. Had she known that the car park was not pay and display I am sure she would not have entered.

On the 2nd Nov 2019 we received a PCN from NCP dated 30th October, with the evidence being a photo of the vehicle entering at 12:07:05 on 17th Oct 2019 and leaving at 12:19:53 a total of 12mins and 48 seconds.

On the 3rd Nov (well within the 14 days allowed) my wife entered an online appeal in her words on their website stating the fact that she was unable to use their machine - These are her words

Text : Reason : The machine did not work I could not get your ticket machine to work - kept timing out, went back to the car to check the registration, back to the machine again still wouldn't work. I gave up and spotted a parking space on the road in union place, promptly left the car park and parked up there, then proceeded to the cinema as planned to watch the film I was now late for. As I never parked in your car park other than to try to pay for my anticipated parking I can't have breached any of your terms.

An auto reply response was immediately received which stated that our appeal had been sent and that they aim to respond within 14 days, in the meanwhile our case would be placed on hold.

No further communication was received until the 24th Dec 2019 when we received a final reminder dated 20th Dec 2019 which stated among other things that we had failed to make a representation against the PCN.

Well clearly, we had, and have the auto response to prove it. So we just ignored it.

ON THE 16TH Jan 2020 we received a letter from Trace Debt recovery demanding payment of £160 by the 30th Jan 2020, with no options apart from payment by various means.

On the 21st of Jan I responded on behalf of my wife to both Trace and NCP with copies of the same letter the content being :

To whom it may concern.

Your company issued a notice dated 20/12/2019 which states that no representations had been made regarding this PCN, which is untrue.

An appeal was made via your website following the prescribed procedures on 3/11/2019. Please find enclosed a screen shot of my email app and confirmation of the submission by your company. Apart from this no other email or written response to the appeal has been received.

For the reasons stated in my appeal, I never ‘parked’ in your carpark, just spent 10 minutes trying to get your machine to issue a ticket, before giving up and leaving. Therefore, no contract has been breached and no debt has arisen. I do have MS and do have difficulty with these machines (cognitive issues) however I thought it was a pay and display car park.

I have today received a letter from a debt recovery company, which gives no option apart from paying, for the reasons stated in my submission and above, I have no intention of paying and will vigorously defend the matter should it proceed to court.

Your Sincerely

This letter was sent 1st Class signed for to both Trace and NCP. Tracking by royal mail shows that the letter to trace was received and signed for on the next day (22nd Jan) but the one addressed to NCP wasn’t received or signed for until the 3rd of March.

A letter dated 9th March arrived next from NCP stating that they couldn’t comment further on the case and to refer to Trace debt recovery.

We then received a letter from BW Legal, not quite sure when but probably around August, reinforcing the debt, and suggesting a payment plan due to covid, which I threw away then a barrage of calls sometimes 2 a day – one I actually answered got quite heated. I refused to recognise the debt. My final call with BW Legal was more reasoned, I elaborated more on my wifes cognitive issues due to her ongoing battle with MS. (he’s probably been sacked by now !!!) Still I thought that was an end to it until we received a notice of county court claim issued dated 20th December 2020.

It states that they have now issued legal proceedings, following expiry of a pre action protocol letter.

We have never received a pre action protocol letter; however,  today I logged on to the moneyclaim site and lodged an Acknowledgement Of Service disputing the claim and requesting a further 14 days for defence preparation.

Their claim is for £176.92, which includes £60 recovery costs and £16.92 interest plus court fees of £25 and legal representatives costs of £50, a total of £251.92.

Do I actually have a defence here? if so is it

·         Her incapacity to operate these machines.

·         The fact that only 12 minutes were spent in the car park and all that time was spent trying to pay for parking.

·         The fact that NCP ignored an online appeal – had they responded by declining the appeal or seeking more information we would have at least had the opportunity to pay £60 rather than the £100 final demand.

·         Any thing else that may be relevant?

BTW just prior to posting, I have just finished reading the robertcox999 thread and am wondering if it’s worth all the effort after his impeccable defence and witness statement and the disappointing outcome.


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Replies

  • edited 30 December 2020 at 11:34AM
    RedxRedx Forumite
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    edited 30 December 2020 at 11:34AM
    Paragraphs 2 & 3 need adapting from that lovely defence , nothing else is changed in most cases

    You need short sentences in there , not war and peace , frustration of contract seems to me the main issue here , faulty machines or whatever , so 3 needs a concise statement of the facts and legal words , plus any BPA CoP statements regarding grace periods , plus the EA2010 which allows her extra time to park as reasonable adjustment

    Work on 2 & 3 and post just those 2 paragraphs below

    As for NCP , report them to the BPA AOS team for not replying to the appeal , which should have been done at the time !!!
  • Le_KirkLe_Kirk Forumite
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    What was the date of issue of your county court claim form?  If you post that date here @KeithP will be along to give you some deadlines.  Meanwhile look at the template defence (one of the first five threads on the first page of the forum), read it and understand that you (your wife) only needs to change paragraphs 2 & 3  giving in short terms the technical reason for not parking in the car park and leaving within the grace period.  Refer to it as frustration of contract due to failure of THIER equipment.  Save the longer story for the witness statement stage.
  • UmkomaasUmkomaas Forumite
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    The fact that NCP ignored an online appeal – had they responded by declining the appeal or seeking more information we would have at least had the opportunity to pay £60 rather than the £100 final demand.
    Was that via an appeal portal on their website, or via email?  By what method(s) did they accept appeals - as shown on their first letter to you?
  • echo8echo8 Forumite
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    MoneySaving Newbie
    Thank you all for responding,
    Redx, this is where I get lost what are the correct legal words. The defence seems to consist of lots of different elements and arguments in legal speak - I'm sure if some one presented this to me I would think the defendant had just cut and pasted their defence from a forum as well, after all we are just normal people looking for justice, not lawyers, hence my initial paragraph. 
    Le_Kirk, the date of issue was 15th of December, Not sure we can quote failure of their machine as during my final conversation with BW Legal they mentioned that the logs show that the machine was operating correctly. 
    UmKomaas, The appeal was via their online portal, in accordance with their procedure printed on the back of the initial PCN.
    Can this now be delayed to get information from NCP regarding information that they hold relavant to the case ?
  • edited 30 December 2020 at 2:02PM
    RedxRedx Forumite
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    edited 30 December 2020 at 2:02PM
    If you don't want free help , pay a lawyer , MSE does not allow people to give legal advice , only suggestions !

    All I am asking you to do is post 2 adapted paragraphs that people can help you to hone

    I never said that I or we understood them , we may not understand the covid vaccine but it won't stop me having it !! Sometimes dissection is bad and also kills the patient !

    Most people on here are not legal people or lawyers , yet most get by just fine

    Martin Lewis would tell you to employ a lawyer , but you have come to a free parking forum for legal assistance , so either accept it or move along elsewhere like asking the SRA for a list of professional qualified lawyers in your locality

    Sorry to be blunt , but it needed saying

    As for the case , just accept what we tell you , faulty machines are common , they must prove their case , if a judge believes your wife then it's a powerful argument meaning frustration of contract , the EA2010 is law , they should comply with the law

    No it cannot be delayed , it has 33 days from Dec 15th , a finite deadline which KeithP will likely expand on
  • UmkomaasUmkomaas Forumite
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    The defence seems to consist of lots of different elements and arguments in legal speak - I'm sure if some one presented this to me I would think the defendant had just cut and pasted their defence from a forum as well
    Well, the claim from the Claimants will also be in 'legal speak', one which you can find all over the internet. 

    Of course, you can always draft your own defence in 'normal speak', there's no requirement to follow a ready-made template that has proved effective so often.
    UmKomaas, The appeal was via their online portal, in accordance with their procedure printed on the back of the initial PCN.
    So that's a complaint then to the BPA - there's a complaint portal on their website. 
  • echo8echo8 Forumite
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    MoneySaving Newbie
    Redx said:
    If you don't want free help , pay a lawyer , MSE does not allow people to give legal advice , only suggestions !

    All I am asking you to do is post 2 adapted paragraphs that people can help you to hone

    I never said that I or we understood them , we may not understand the covid vaccine but it won't stop me having it !! Sometimes dissection is bad and also kills the patient !

    Most people on here are not legal people or lawyers , yet most get by just fine

    Martin Lewis would tell you to employ a lawyer , but you have come to a free parking forum for legal assistance , so either accept it or move along elsewhere

    Sorry to be blunt , but it needed saying

    As for the case , just accept what we tell you , faulty machines are common , they must prove their case , if a judge believes your wife then it's a powerful argument meaning frustration of contract , the EA2010 is law , they should comply with the law

    No it cannot be delayed , it has 33 days from Dec 15th , a finite deadline which KeithP will likely expand on
    Redx, Sorry if I offended you, purely my view as first time visitor - overwhelmed by the complexity and length of the defence template. You have every right to be blunt - but surely I'm not the first to post this sort of comment. I will re read the defence template and adapt paras 2 and 3 and post back for comment. Thank you
  • edited 30 December 2020 at 2:29PM
    KeithPKeithP Forumite
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    edited 30 December 2020 at 2:29PM
    echo8 said:
    Le_Kirk, the date of issue was 15th of December...
    echo8 said:

    ...today I logged on to the moneyclaim site and lodged an Acknowledgement Of Service disputing the claim and requesting a further 14 days for defence preparation.


    With a Claim Issue Date of 15th December, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 18th January 2021 to file your Defence.
    That's over two weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.
    To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.
    Don't miss the deadline for filing a Defence.

    Where I say 'you' I do of course mean the named Defendant.
    Everything, absolutely everything, must be done in the name of the Defendant.
    I do hope the Acknowledgment of Service was filed in the Defendant's name too.
  • nosferatu1001nosferatu1001 Forumite
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    Yes, you're not the first. But, and look at it this way, the defence template works

    Its a lot of work by one amazing poster 

    You either take it as is, and put in the time yourself to understand it - which absolutely CAN be done, and you just do - or pay a lawyer, or make up your own. 

    At this point your only job from our side is para 2 and 3. About 20min work. Once that's done you've got MKNTHS to understand the defence

    so
    do your work. No "I" either. Defendant. 
  • edited 30 December 2020 at 5:32PM
    RedxRedx Forumite
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    edited 30 December 2020 at 5:32PM
    echo8 said:
    Redx said:
    If you don't want free help , pay a lawyer , MSE does not allow people to give legal advice , only suggestions !

    All I am asking you to do is post 2 adapted paragraphs that people can help you to hone

    I never said that I or we understood them , we may not understand the covid vaccine but it won't stop me having it !! Sometimes dissection is bad and also kills the patient !

    Most people on here are not legal people or lawyers , yet most get by just fine

    Martin Lewis would tell you to employ a lawyer , but you have come to a free parking forum for legal assistance , so either accept it or move along elsewhere

    Sorry to be blunt , but it needed saying

    As for the case , just accept what we tell you , faulty machines are common , they must prove their case , if a judge believes your wife then it's a powerful argument meaning frustration of contract , the EA2010 is law , they should comply with the law

    No it cannot be delayed , it has 33 days from Dec 15th , a finite deadline which KeithP will likely expand on
    Redx, Sorry if I offended you, purely my view as first time visitor - overwhelmed by the complexity and length of the defence template. You have every right to be blunt - but surely I'm not the first to post this sort of comment. I will re read the defence template and adapt paras 2 and 3 and post back for comment. Thank you
    No problem , just put your reservations to one side and trust the experienced people who have been here many years and have vast knowledge about the topic , some of them have advised qualified lawyers to win their cases so don't assume that a professional knows more , most do not

    I trust the experienced regulars here , so should you , but you get what you pay for , which on here is usually good enough ( I don't need a chemistry degree to trust the people who are interviewed on TV saying I am better off vaccinated than not )

    Yes post paragraphs 2 and 3 for comment

    Your deadline is around the 19th January , regardless
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