CCJ old address for PCN's Partner received-need set aside & removed from credit file ASAP

IrishAK

is 2.1 valid? 
should that be part of the defence? 
do I bother putting in the details of 13.3 or is that sucking eggs to the judge?

The problem is my partner does not have itemised billing so no way to prove she called, and the same with the letter I posted back.
wanted to check if the NTK was POFA compliant 

KeithP

In paragraph 1.4.3, what does the word 'wilfully' add, or even mean in this context?

Coupon-mad

wilfully 

Arrrgggh, not again, will everyone STOP copying that wrong word from the person who first wrote it!  I see @KeithP has pointed it out...again...sigh.

Yes you must mention 13.3, it is your safety net.

And that NTK is not POFA compliant, probably because they knew they'd posted it too late in July 2019, for a June 2019 event.  That is Britannia's non-POFA NTK and it can only hold a driver liable in law.

IrishAK

I will willfully remove that word lol
sorry I redacted too far. 
contravention date 28th June 2019
Notice was 10th July 2019
So within 14 days , or exactly 14 days if you add the 2 days for posting

Fruitcake

IrishAK said:

I will willfully remove that word lol
sorry I redacted too far. 
contravention date 28th June 2019
Notice was 10th July 2019
So within 14 days , or exactly 14 days if you add the 2 days for posting

Correct, but the wording is non PoFA compliant.

Have you checked the name of the scammers as it appears on the signs? We have seen several cases thrown out by a judge because the name of one company is on the signs but the name on the NTK/court claim is different.

Check very, very carefully to see if they differ.

Coupon-mad

IrishAK said:

contravention date 28th June 2019
Notice was 10th July 2019
So within 14 days , or exactly 14 days if you add the 2 days for posting

So what?

I said they sent their NON POFA VERSION (wording) never mind the date.  It's really really obvious if you check para 9 of the POFA Schedule 4.

IrishAK

Thank you so much to everyone who has helped so far.. Here's the first draft of my defence, any notes will be appreciated as I'm not sure if everything in here is needed.

Thanks! 

IN THE COUNTY COURT

Claim No.: XXXXXXXX

Between

Britannia Parking Group Limited T/a Britannia Parking

(Claimant) 

- and -  

XXXXXXXXXX

 (Defendant)

____________________

DEFENCE

____________________

1.       The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant:

2.1. It is admitted that the Defendant was the registered keeper of the vehicle in question, but liability is denied. The defendant was not the driver and was elsewhere at the time of the alleged offences on June 28th, 2019. Therefore, there was no contract created between the claimant and the defendant. With no contract, there can be no breach. The particulars of claim state that the keeper is liable for the alleged debt. The defendant, as the keeper, cannot be held liable and therefore the claimant is claiming against the wrong party and the claim should be dismissed.

2.2. It was confirmed by the driver when they called Britiannia Parking shortly after the PCN was issued in 2019.

2.3. The driver also confirmed liability when they gave their payment details to Britannia to pay for the PCN over the phone in June 2019.

2.4. Due to the driver not being the registered keeper of the vehicle (XXXXXXX) the payment was declined June 2019.

2.5. The defendant, transferred liability to the driver of my vehicle after receiving the PCN via notice on the bottom of the PCN on July 15th, 2019 approx.

2.6. Claimant obtained a Default Judgement against me as the Defendant on 1st of March 2021 and that the assumed claim is in respect of unpaid Parking Charge Notice from the 28th of June 2019 at my then residence XXXXXXXXX. The defendant contest this charge.

2.7. The claim form was not served at the defendant's current address and thus was not aware of the Default Judgement until 30th April 2021 by their Mortgage Broker, following a Mortgage in Principle application being declined. Exhibit XX.
2.8. The address on the claim is XXXXXXX. The defendant moved to their current address at XXXXXXXX on the 19th July 2020. In support of this they can provide a scanned copy of my Tenancy agreement, and bank & credit card statements; See Exhibit XX. After the only correspondence from the defendant to Britannia sent in July 15th, 2019 approx., given 2 days for posting this still leaves approx. 19 months and 15 days to find my correct address.

2.9. The defendant discovered a CCJ was lodged onto my credit file on the 30th of April 2021.
2.10. On 30th April 2021  the defendant  contacted the County Court Business Centre to obtain relevant information relating to this default judgement; Email received by the County Court on Friday 7th May 2021; Exhibit XX
2.11. On 14th May 2021 the defendant submitted my case in order to set-aside this judgement and fairly present their case.
2.12. The defendant believes the Claimant has behaved unreasonably in pursuing a claim against the defendant without ensuring they held the Defendant’s correct contact details at the time of the claim.

2.13 On that basis, the defendant believes the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The claimant did not take reasonable steps to ascertain the address of my current residence despite having 20 months and 2 days since the PCN was issued to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgement.
2.14. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

3.1. In June 2019 the defendant received a letter by post from the claimant for a Parking Charge Notice for June 28th 2019.  The defendant was not the driver and was elsewhere at the time of the alleged offence.

3.2. This was confirmed by the driver when they called Britiannia Parking shortly after the PCN was issued in 2019. The driver also confirmed liability when they gave their payment details to Britannia to pay for the PCN over the phone in June 2019. Due to the driver not being the registered keeper of the vehicle (XXXXXX) the payment was declined.

3.3. The defendant transferred liability to the driver of their vehicle after receiving the PCN via notice on the bottom of the PCN on July 15th, 2019 approx.

3.4. The defendant discovered the CCJ on the 30th April 2021 after her Mortgage Advisor had put through a Mortgage in Principle which got declined. This was the 3rd mortgage that the defendant applied for but the first to be declined.

3.5. That same day the defendant called the County Court Business Centre to obtain relevant information relating to this default judgement to which they didn’t receive by the County Court until Friday 7th May 2021. On 14th May 2021 the defendant submitted their case in order to set-aside this judgement and fairly present their case.

4.  The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

5.       It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this moneyclaim is in part/wholly a penalty, applying the authority in ParkingEye cases (ref: paras 98, 100, 193, 198) ParkingEye Ltd v Beavis [2015] UKSC 67 and para 419 of HHJ Hegarty’s High Court decision in ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was set at £75 (discounted to £37.50 for prompt payment) then increasing ultimately to £135.  Much like the situation in this claim, the business model involved sending a series of automated demands to the keeper.  At para 419, HHJ Hegarty found that adding £60 to an already increased parking charge 'would appear to be penal' and unrecoverable.  ParkingEye had dropped this punitive enhancement by the time of Mr Beavis' famous parking event.

6.       Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

7.  The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties.  It is known that parking firms have been misleading the courts with an appeal at Salisbury Court (the Semark-Jullien case) where the Judge merely reset an almost undefended case back for a hearing.  He indicated to Judges for future cases, how to consider the CRA 2015 properly and he rightly remarked that the Beavis case was not one that included additional 'costs' per se, but he made no finding of fact about the illegality of adding the same 'automated letter costs' twice.  He was not taken by either party to Somerfield in point #5 above and in any event it is worth noting that the lead Southampton case of Britannia v Crosby was not appealed.  It is averred that District Judge Grand's rationale remains sound, as long as a court has sufficient facts to properly consider the CRA 2015 s62, 63 and 67 before turning to consider the Protection of Freedoms Act 2012 Sch4 ('the POFA').

8.  Pursuant to Sch4 of the POFA at 4(5), the sum claimed exceeds the maximum potentially recoverable from a registered keeper, even in cases where a parking firm has complied with its other requirements (denied in this case).  It is worth noting that even though the driver was known in Beavis, the Supreme Court considered the POFA, given that it was the only legislation specifically dealing with parking on private land.  There is now also the Parking (Code of Practice) Act 2019 with a new, more robust and statutory Code of Practice being introduced shortly, which evolved because the two Trade Bodies have failed to properly govern this industry.

 **** Do I keep all of this below? ****

The ParkingEye Ltd v Beavis [2015] UKSC 67 case is distinguished

9.       Unlike in this case, ParkingEye demonstrated a commercial justification for their £85 private PCN, which included all operational costs, and they were able to overcome the real possibility of the charge being dismissed as punitive and unrecoverable.  However, their Lordships were very clear that ‘the penalty rule is plainly engaged’ in such cases.  

10.       Their decision was specific to what was stated to be a unique set of facts: the legitimate interest/commercial justification, the car park location and prominent and clear signs with the parking charge itself in the largest/boldest text.  The unintended consequence is that, rather than persuade courts considering other cases that all parking charges are automatically justified, the Beavis case facts and pleadings (and in particular, the brief and very conspicuous yellow/black signs) set a high bar that this Claimant has failed to reach.

11.   Without the Beavis case to support the claim and no alternative calculation of loss/damage, this claim must fail.  Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of an overriding legitimate interest in performance extending beyond the prospect of compensation flowing directly from the alleged breach.  

12.   The Supreme Court held that the intention cannot be to punish a motorist - nor to present them with concealed pitfalls, traps, hidden terms or unfair/unexpected obligations - and nor can the operator claim an unconscionable sum. In the present case, the Claimant has fallen foul of the tests in Beavis.

13.       The Claimant’s signs have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

14.   Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(ii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

15.   Fairness and clarity are paramount in the new statutory CoP being finalised by the MHCLG and this stance is supported by the BPA and IPC alike. In the November 2020 issue of Parking Review, solicitor Will Hurley, the Chief Executive of the IPC Trade Body, observed:  'Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t. The introduction of a new ‘Code of Practice for Parking’ provides a wonderful opportunity to provide clarity and fairness for motorists and landowners alike."   The Defendant's position is that the signs and terms the Claimant is relying upon were not clear, and were in fact, unfair and the Beavis case is fully distinguished.

 

16.  In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

 

In the matter of costs, the Defendant seeks:

17.   (a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) that any hearing is not vacated but continues as a costs hearing, in the event of a late Notice of Discontinuance.  The Defendant seeks a finding of unreasonable behaviour in the pre-and post-action phases by this Claimant, and will seek further costs pursuant to CPR 46.5.

18.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and to dismiss the claim. 

Statement of Truth

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Defendant’s signature:

Date: 14/05/21

 

Castle

Check your dates in 3.1 and 3.2; should be July 2019 I suspect.

Coupon-mad

offences
= event.

 **** Do I keep all of this below? ****

Yes if this is your defence and not your witness statement to support the setting aside of the CCJ.  I am confused because #2 and #3 read more like the WS about the set aside, than a defence about the fact that you can't be held liable, due to the C's choice not to use the POFA and because they knew you were not the driver.

2.12. The defendant believes the Claimant has behaved unreasonably in pursuing a claim against the wrong defendant without ensuring they held the Defendant’s correct contact details at the time of the claim and with prior knowledge that the registered keeper was not the driver and knowledge that they were unable to invoke the 'keeper liability' power of Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA').  The Defendant notes that the Notice to Keeper was non-POFA in wording, given that it was a version that made no attempt to comply with paragraph 9 of the POFA.  The Claimant will be well aware of this - they issued the document - and yet it has knowingly sued the wrong person, who the Claimant knew could not have been liable as soon as they knew that a third party was the driver.  The Defendant submits that this must reach the high bar of wholly unreasonable conduct.

IrishAK

2.12. The defendant believes the Claimant has behaved unreasonably in pursuing a claim against the wrong defendant without ensuring they held the Defendant’s correct contact details at the time of the claim and with prior knowledge that the registered keeper was not the driver and knowledge that they were unable to invoke the 'keeper liability' power of Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA').  The Defendant notes that the Notice to Keeper was non-POFA in wording, given that it was a version that made no attempt to comply with paragraph 9 of the POFA.  The Claimant will be well aware of this - they issued the document - and yet it has knowingly sued the wrong person, who the Claimant knew could not have been liable as soon as they knew that a third party was the driver.  The Defendant submits that this must reach the high bar of wholly unreasonable conduct.

Amazing Coupon-mad thankyou! 
sorry I have been trying to familiarise myself with POFA and wanted to be able to say (if asked) how it was in breach of the POFA wording.
OK so WS done, Draft order done, Defence done with everyone's adjustments, thank you. 
Now the N244 itself, -  great guide by henrik777 (thank you!)

are they still accepting everything via email? and are they still doing telephone hearings? do I tick just that option or the hearing as well? 
I live in Southampton, and Judges down here don't seem to keen on the PPC's so if poss and if I did have to attend would be great if here, however, 
I have read mixed things on forums where it says as court hearing has already taken place at Northampton court have to serve papers there, but have also read you can do it at your local court house?