Excel - Set aside WON & CASE WON - Excel defeated AGAIN!

milkybk

1505grandad said:

Para 3  -  "The Claimant's Data Protection Officer also refused to reply to the Defendant's Subject Access Request email, sent 04/072021."  -  / missing

Just checking this:-

"The Claimant also ignored a follow up email chasing the SAR on 07/07/2021."

in view of this:- 

"By law, the Claimant should have responded without delay and within one month of receipt of the request." 

Hi - Yes so:

SAR request sent by Defendant - 04/07/2021 (after finding out about surprise CCJ)
Follow up email chasing Claimant sent by Defendant (as I heard nothing) - 07/07/2021

Claimant then sends (incomplete) SAR - 16/09/2021 (probably because they're though, oh **** the Judge won't like that)

Note: They also ignored my requests for information in 2017 for my appeal, so I couldn't appeal any further after they rejected (standard) my first one, as I had no facts to go on.

This was a simple SAR request, therefore there are no mitigating circumstances to allow for an extension should have been required. Therefore, as you say - "By law, the Claimant should have responded without delay and within one month of receipt of the request." 

Would you advise me editing something? It all looks right to me? I have laid out this timeline for the Judge clearly in my Witness Statement too, along with all other events.

In my opinion, it is clear they ignored all my requests, hoping I would bow to their consented set aside with me paying all costs. They were basically bullying me further, rather attempting to and failing. They have shown a pattern of perverting the course of justice and my rights to a fair appeal process & hearing. However I haven't mentioned this last bit, as whilst it is probably true, it is just my opinion, so could be considered conjecture. 

Le_Kirk

Hi @Le_Kirk - (1) yes that is the point I was trying to make. In Feb 2017 I never found a NTD affixed to my vehicle at any time, regardless of where it was parked. However, I am also obviously not admitting to being the driver on the night of the alleged incident.
(2) Question - Once finished should I send this draft defence to the claimant and the court before my hearing (on Thursday this coming week)? Just so they know I'm willing to defend under CPR13.3 too. 

(1) I would make the point more forcefully then and explain to the judge what you mean by it.  You do not have to have been the driver; you could have asked the driver once you received your NTK.  "Driver, did you see a NTD?"
(2) Although it is now recommended to send a copy of defence to claimant for normal cases because CCBC seem to be failing to do that, this is a set-aside case and you only need to have a defence "in your back pocket" in case the judge asks and to prove you have reasonable chance of successfully defending it.

milkybk

Le_Kirk said:

Hi @Le_Kirk - (1) yes that is the point I was trying to make. In Feb 2017 I never found a NTD affixed to my vehicle at any time, regardless of where it was parked. However, I am also obviously not admitting to being the driver on the night of the alleged incident.
(2) Question - Once finished should I send this draft defence to the claimant and the court before my hearing (on Thursday this coming week)? Just so they know I'm willing to defend under CPR13.3 too. 

(1) I would make the point more forcefully then and explain to the judge what you mean by it.  You do not have to have been the driver; you could have asked the driver once you received your NTK.  "Driver, did you see a NTD?"
(2) Although it is now recommended to send a copy of defence to claimant for normal cases because CCBC seem to be failing to do that, this is a set-aside case and you only need to have a defence "in your back pocket" in case the judge asks and to prove you have reasonable chance of successfully defending it.

Should I send a draft to just the court then? Or is that a nono, as you would need to send to Claimant too? Therefore best to just hold it back in case the Judge doesn't agree with CPR13.2 so I can say, e.g. "here's my CPR13.3 defence then your honour"

Ok, here's a new draft. I have tweaked it a bit and moved some stuff around as per suggestions from both @Le_Kirk and @1505grandad - Let me know if you think it reads better now or should be changed back etc.

New draft:

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.   It is admitted that the Defendant was the registered keeper of the vehicle. However anyone could have been driving the car, such as a friend or relative, who had insurance allowing them access to other vehicles. Over 55 months have passed since the alleged event and therefore, the Defendant cannot be sure who was driving on an unremarkable day so long ago.

3.   Therefore the Defendant is unable to admit or deny that he was the driver and therefore requires the claimant to prove so. Furthermore upon receiving the aforementioned Notice of Keeper (NTK) from the Claimant, no person was able to identify seeing a Notice to Driver (NTD) affixed to the vehicle in question.

4.   The Claimant repeatedly refused to provide the Defendant with photographs etc when requested during the original appeal in 2017, therefore the Defendant cannot be sure of the full facts. When the Defendant discovered they had a surprise CCJ filed against themselves, they sent the Claimant's Data Protection Officer an official Subject Access Request on 04/072021. The Claimant also ignored a follow up email sent on 07/07/2021 from the Defendant, chasing the SAR. By law, the Claimant should have responded without delay and within one month of receipt of the request. 

5.   On 16/09/2021 the Defendant received a SAR file from the Claimant, over 2 months after the SAR was requested. The Claimant stated they had never received the SAR from the Defendant. However the Defendant can provide date and time stamped emails, along with automatic reply receipts from the Claimant, proving they did receive the aforementioned SAR. It contained no new information that pertains to the Defendant's defence.  

6.   This was a simple request and therefore there are no mitigating circumstances to allow for an extension, should one have been required. Therefore by law, the Claimant should have responded without delay and within one month of receipt of the request. Therefore the Claimant refused the Defendant's legal right of access, as they did in 2017 during the Defendant's original appeal.

7.  As the registered keeper, the first heard the Defendant heard about this alleged parking charge was via post. The only photos provided were two blurry ones, where the cars registration plate could barely be made out. The claimant has demonstrated no evidence of non-payment of a parking ticket, nor failure to display, nor any breach of contract. In the Defendant's Subject Access request, the Claimant was asked to provide a PDT machine record from the day of the alleged parking charge, of all payments made. They did not supply this.

8.   The photos the Claimant has provided in their witness statement are of signage in daylight on completely different dates, potentially over 4 years since the alleged offence.  As can be seen on the PCN car photos, it was extremely dark when the alleged event took place. Therefore these signs will not have been as clear or as easy to spot, if they were even present in 2017.

9.   Finally, the aerial view they Claimant has created shows just one PDT machine (no proof it was working) and a couple of 'entrance signs' and a single ANPR sign but zero 'information signs', none whatsoever. Therefore this cannot be considered evidence of an agreed contract by the driver.

10.   The Defendant has been hounded and harassed by a bombardment of ‘debt recovery’ letters. It should also be pointed out that the Defendant cannot be held liable, due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4

MothballsWallet

Jenni_D said:

I can understand why the OP said V05 though ... Jake himself uses that term in his WS.  

The way things are going, with the new code of practice, he might have to downshift to the cheapest budget brand he can find

milkybk

MothballsWallet said:

Jenni_D said:

I can understand why the OP said V05 though ... Jake himself uses that term in his WS.  

The way things are going, with the new code of practice, he might have to downshift to the cheapest budget brand he can find

Haha lets hope so, they deserve nothing less!    

How does the defence look now to everyone (one post above Moths)? All good? Any changes/mistakes?

Also, can someone with experience of these sessions take a look at my questions below (maybe some of you have been to court for similar or had a remote hearing etc):

Questions:

• I have email confirmation that the court received my contact details but haven't received a link yet to the hearing. How long before the hearing should I receive this?
• Do you have to share your screen at all during the hearing?
• How can ensure the Judge has the up to date documents? My dealings with the CCBC admin staff were poor (as this thread details, thankfully corrected eventually) and they made numerous errors. I don't have full confidence that the court admin staff are any better...
• My main concern is that they won't have added my supplementary witness statement to the file for the Judge (and draft defence once I sent it). This is important as it points out the errors in the Claimants Witness Statement and proves they're conjecture etc.
• Therefore, during the trial, can I send and share files on the day if required?

Coupon-mad

Hmmm...I'd get rid of #4, 5 and 6 that are nothing to do with a defence to the PCN.  You got your SAR in the end and the Judge won't care how long that took.

You were going to remove this as it was just an aside from me and not meant to be in the defence:

However anyone could have been driving the car, such as a friend or relative, who had insurance allowing them access to other vehicles.

How come #9 says 'finally' yet the template defence is much longer than this...you aren't stopping there because there is a lot more to the defence, so 'finally' makes no sense.

And if you appealed in 2017 - which I don't think we knew until now - how can you truthfully take the stance that you don't know who was driving?  Think about what you are saying and how all this looks to the Judge.

Questions: (answers in bold/italics)

• I have email confirmation that the court received my contact details but haven't received a link yet to the hearing. How long before the hearing should I receive this?  Can be two days before.  Depends on the court!
• Do you have to share your screen at all during the hearing? No.  You are not the host of the meeting.
• How can ensure the Judge has the up to date documents? My dealings with the CCBC admin staff were poor (as this thread details, thankfully corrected eventually) and they made numerous errors. I don't have full confidence that the court admin staff are any better... You can't be sure but could ask near the start.
• My main concern is that they won't have added my supplementary witness statement to the file for the Judge (and draft defence once I sent it). This is important as it points out the errors in the Claimants Witness Statement and proves they're conjecture etc.  As above.  Why not attach the supplementary WS again when you send this defence, and copy in the Claimant/solicitor.

milkybk

Coupon-mad said:

Hmmm...I'd get rid of #4, 5 and 6 that are nothing to do with a defence to the PCN.  You got your SAR in the end and the Judge won't care how long that took.

You were going to remove this as it was just an aside from me and not meant to be in the defence:

However anyone could have been driving the car, such as a friend or relative, who had insurance allowing them access to other vehicles.

How come #9 says 'finally' yet the template defence is much longer than this...you aren't stopping there because there is a lot more to the defence, so 'finally' makes no sense.

And if you appealed in 2017 - which I don't think we knew until now - how can you truthfully take the stance that you don't know who was driving?  Think about what you are saying and how all this looks to the Judge.

Questions: (answers in bold/italics)

• I have email confirmation that the court received my contact details but haven't received a link yet to the hearing. How long before the hearing should I receive this?  Can be two days before.  Depends on the court!
• Do you have to share your screen at all during the hearing? No.  You are not the host of the meeting.
• How can ensure the Judge has the up to date documents? My dealings with the CCBC admin staff were poor (as this thread details, thankfully corrected eventually) and they made numerous errors. I don't have full confidence that the court admin staff are any better... You can't be sure but could ask near the start.
• My main concern is that they won't have added my supplementary witness statement to the file for the Judge (and draft defence once I sent it). This is important as it points out the errors in the Claimants Witness Statement and proves they're conjecture etc.  As above.  Why not attach the supplementary WS again when you send this defence, and copy in the Claimant/solicitor.

Thanks for answering my questions . Please remember all these questions are for my defence, which would be after the set aside hearing if I was to lose. my comments on your notes below:

With regards to 4/5/6 - I feel it's poignant to point out that they broke the law regarding the saw. It specific states they must reply within a month, it's even in their DPO and CoP blurb I believe. Surely the Judge will care about that (if they really won't I can edit it but seems unfair that Excel's illegal behaviour shouldn't be pointed out...)? I am trying to paint the picture for the Judge that the claimant has refused to cooperate as legally required for 4 years, ultimately leading to a defectively served claim and this CCJ and set aside hearing.

Will remove finally, thank you, very good point. I have a copy with all the additional standard template points on, I just haven't posted it yet as it's very long haha. I will once it's ready.

Will also remove the other section you mentioned.

Q: And if you appealed in 2017 - which I don't think we knew until now - how can you truthfully take the stance that you don't know who was driving?  Think about what you are saying and how all this looks to the Judge.

A: I've mentioned it multiple times in thread tbh and also had another thread at the time the original NTK arrived (link to original thread). The NTK was the first I heard about it and there was no proof I was driving at the time and I didn't believe I was. I denied liability of being the driver then and I did appeal, obviously failed and submitted a request for info so I could do the next appeal process but the Claimant ignored that request for 4 years.


Q:As above. Why not attach the supplementary WS again when you send this defence, and copy in the Claimant/solicitor.

A: I thought I was advised to not send the defence yet? Have it in my back pocket? I will call Milton Keynes Court on Monday and ask to speak to a manager to check what's on file. My concern is that everything had to be filed 7 days before the remote hearing, which it was by me but I have no idea if they've done it correctly! 


For some context - date timeline:

I lived at the original address (where claim was allegedly served) from August 2015 until 24/11/2017, I was living with a friend, renting a room from him.

It was a set of flats. These flats (privately owned) had a post-boxes on the communal entrance door, that the postman had no access to the flats inside. We would then collect our mail from said cages, however aforementioned cages weren't locked etc. 

Since August 2013 I have been working for a company in Milton Keynes. I commuted each week, staying in Milton Keynes from Monday-Friday in rented accommodation. I would then travel back to the flat in Sheffield for the weekends. Therefore any post I received was collected by my flat mate and given to me on the Saturday of each week. No further communication from Excel was ever received by him. He is happy to testify to this, I have already spoken to him.

The alleged PCN is from Feb 2017, when I received an NTK, posted in previous thread.

The car was sold in March 2017 - only mentioned as the VC5 is relied on by the Claimant as their only means of tracking me down.

I then eventually had enough of the commuting (unsurprisingly)  and moved to Milton Keynes permanently in November 2017, as per my Witness Statement. All my documents were updated with new addresses etc.

CCJ was then filed in September 2020. I found out about this through a letter from a third part debt collector, as per beginning of this thread.

According to the court the claim was issued on 11th August 2020.

If you think this info is relevant or I haven't made it clear enough, then I can add it to my defence or a supplementary statement/timeline for the Judge. However I believe that needed to be filed 7 days before the hearing.


Excel parking status log below (I've posted previously) just so you can see the gaps in dates etc:

I assume "DR" stands for their "Defense Rep", i.e. lawyer, who never contacted me.

milkybk

@Coupon-mad - (considering the response I posted above) I personally feel I have laid out the timeline of events in my original Witness Statement clearly.  I'll put my Witness Statement here in spoilers (hopefully they work), so you can see if it was covered thoroughly enough there, my understanding was it was all good from posts on here... In my witness statement I didn't use the 3rd person when referring to myself, don't know if that was right or wrong.

IN THE MILTON KEYNES COUNTY COURT

Claim No. XXXX

BETWEEN:

Excel Parking Services Limited

Claimant

– and –

Defendant

XXX

__________________________________________

WITNESS STATEMENT OF XXXX

__________________________________________

I , XXX of XXXX , being the Defendant in this case will state as follows;

1. I make this Witness Statement in support of the application for an order that the judgment in this case (Claim No. XXXX - Judgment dated 03/09/2020) be set aside.

2. I was the registered keeper of the vehicle at the time of the alleged offence.

3. I learnt of the existence of this claim on the 29/06/2021, when I received a letter from a 3rd party Enforcement Agent (DCBL) requesting payment of the judgment detailed in paragraph 1. This letter was sent to my current address and was the first contact I had with DCBL. [EXHIBIT A]

4.1 Upon receiving this letter I contacted Northampton CCBC, who sent me through the details of the judgment, showing it was served at an old address, on behalf of Excel Parking Services Limited. The address on the claim is XXXX , an address I haven’t lived at since November 2017. I lived at XXXXX , between 24/11/201 and 23/05/2018. In support of this I can provide a scanned copy of a bank statement, alongside a council tax bill, utility bills, my signed/dated tenancy agreement, confirmation of tenancy ending and a photo of a driving licence; [EXHIBIT B1-B7]

4.2 I moved to my current address at XXXX , on the 24/05/2018. This is a private property which I rent from a friend. To support this being my current residence I can provide a scanned copy of a bank statement, alongside my most recent council tax bill, recent utility bill, and a photo of a driving licence; [EXHIBIT C1-C4]

4.3 I have also included a copy of my Milton Keynes Online Revenues Service Council Tax account page, clearly showing all addresses, account numbers and dates of liability/occupancy. [EXHIBIT D]

5. I also confirmed these details by contacting Trust Online and paying for a report, as per advice on the Gov UK website. [EXHIBIT E1-E2]

6. Therefore the claim form was not served at my current address and I thus was not aware of the Default Judgement. However, a 3rd party Enforcement Agent was easily able to track me to my correct address, after the judgment was issued.

7. In addition to the above, it should be highlighted that the integrity and law-abiding intention

of the Defendant should be taken into consideration on the basis that;

7.1 I discovered a CCJ was lodged onto my credit file on the 29/06/2021.

7.2 On 30/06/2021 I contacted the County Court Business Centre to obtain relevant

information relating to this default judgement, which they sent to me via email; [EXHIBIT F]

7.3 On 01/07/2021 I sent an email request to the Claimant inviting them to consent to set aside the judgment due to the reasons in paragraph 4. [EXHIBIT G]

7.4 The Claimant did not respond to my request.

7.5 On 01/07/2021 I also sent an email request to the Claimant’s Data Protection Officer, for a Subject Access Request, to allow myself the opportunity to have all the required information to fairly defend my case. [EXHIBIT H]

7.6 The Claimant did not respond to my request.

7.7 On 13/07/2021, after giving the Claimant 8 working days to reply, I paid the application fee for an N244. [EXHIBIT I]

7.8 On 14/07/2021 I have wilfully submitted my case in order to set-aside this judgement and fairly present my case.

8. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim.

9. On that basis, I believe 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 in. The claimant did not take reasonable steps to ascertain the address of my current residence, despite having some 27 months to establish an address between the time I moved and the time the judgment was applied for. This has led to the claim being incorrectly served to an old address and an irregular judgement.

10. 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. Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses." The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That in the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.”

11. Considering the above I was unable to defend this claim. I believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.

Statement of Truth:

I, XXXXX, the Defendant, 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.

Signed: ___XXX__

Dated: ____14/07/2021___________

Exhibits can be found on next pages

However I could also submit something like this, as a timeline, rather than a witness statement (for clarity if you think it would help):


IN THE MILTON KEYNES COUNTY COURT

Claim No. XXXXX

BETWEEN:

Excel Parking Services Limited

Claimant

– and –

Defendant

XXXX

__________________________________________________________

TIMELINE OF EVENTS XXXXX

________________________________________________________

The facts as known to the Defendant:

I , XXXX of XXX , being the Defendant in this case will state as follows;

The Defendant makes this Timeline in support of the application for an order that the judgment in this case (Claim No. XXX - Judgment dated 03/09/2020) be set aside.

The alleged PCN is from Feb 2017, when the Defendant received an NTK through the post at XXXX. The Defendant acknowledged the receipt of the NTK and appealed. Further information can be found in the Defendant’s Witness Statement.

The Defendant lived at XXXXX from August 2015 until 24/11/2017. The Defendant was living with a friend, renting a room from him. XXXX is a series of small flat blocks. 

These flats were privately owned and each block had a communal entrance door. The postman had no access to the inside of the building and therefore specific flats. The communal entrance door had multiple letter boxes on, that post would be placed through for the corresponding flat number. However these cages were not locked/sealed and there were no preventions for human error, leading to mail being placed in the wrong one. Tenants would then collect their mail from said cages.

Since August 2013 The Defendant has been working in Milton Keynes for XXXX. The Defendant commuted each week, staying in Milton Keynes from Monday-Friday in rented accommodation. The Defendant would then travel back to the flat in Sheffield for the weekends. Therefore any post The Defendant received was collected by their flatmate and given to them on the Saturday of each week. No further communication from Excel was ever received by the aforementioned flatmate. 

The Defendant eventually had enough of the commuting and moved to Milton Keynes permanently in November 2017, as per the Defendant's Witness Statement. The Defendant’s documents were updated with new addresses, as per exhibits in the Witness Statement.

The CCJ was filed in September 2020. The Defendant found out about this through a letter from a third party debt collector, at which point the Defendant contacted Northampton CCBC (as laid out in the Defendant’s Witness Statement, with exhibits). According to the court the claim was served on 11th August 2020, at an address the Defendant had not lived at for over 32 months. 

Statement of Truth:

I, XXXXX, the Defendant, believe that the facts stated in this timeline 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.

Yours faithfully,

XXXX

Signed: ___XXXXX__

Dated: ____19/09/2021___________

Coupon-mad

Yes, a timeline or chronology would assist the Judge, but you don't add 'yours faithfully' under a statement of truth.

Sorry, I think because you were showing us a defence I wrongly thought you were already post set aside and that the court had asked you to submit that defence.  You are not post CCJ yet then!

So yes, keep the defence in your back pocket as a crib sheet, just in case the Judge doesn't think that CPR 13.2 applies and isn't with you that the PPC has breached the CPRs and code of practice by not bothering to trace your address for service (after many years of silence which should have told them that a consumer who previously actively engaged with them and appealed, had almost certainly moved).

Glad to hear you appealed as keeper in 2017 and believe you were not driving, that puts my mind at rest that you can continue in that vein for your defence.

milkybk

Coupon-mad said:

Yes, a timeline or chronology would assist the Judge, but you don't add 'yours faithfully' under a statement of truth.

Sorry, I think because you were showing us a defence I wrongly thought you were already post set aside and that the court had asked you to submit that defence.  You are not post CCJ yet then!

So yes, keep the defence in your back pocket as a crib sheet, just in case the Judge doesn't think that CPR 13.2 applies and isn't with you that the PPC has breached the CPRs and code of practice by not bothering to trace your address for service (after many years of silence which should have told them that a consumer who previously actively engaged with them and appealed, had almost certainly moved).

Glad to hear you appealed as keeper in 2017 and believe you were not driving, that puts my mind at rest that you can continue in that vein for your defence.

Haha no problem, I'm trying to pre-empt everything, so one stop ahead of the set aside even though it might not be needed. Understandable you got confused, sure you're posting in 100's of threads a day!

I will be ringing the court tomorrow to ensure they have everything in order for Thursday. I'll mention I've sent in an additional chronology and just hope they don't mind adding it in a couple days late, as everything else has been timely.

Just FYI - my original reply when I received the NTK:

Re PCN number: EPS XXXXX

I am the keeper of the vehicle and am aware of your purported 'parking charge'. The driver will not be identified. I require the following information so that I can make an informed decision:

1. Who is the party that contracted with your company?
2. Is your charge based on damages for breach of contract? Answer yes or no.
3. Please provide photos of the signs that you say were on site and which you contend formed a contract with the driver.
4. Please provide all photographs taken of this vehicle.
5. Please provide proof that the timing of any camera used was synchronised with all other cameras and/or systems & machines.

Do not send debt collector letters and do not add any costs which would be a thinly-veiled attempt at 'double recovery'. I will not respond to debt collectors and to involve a third party would be a failure to mitigate your costs as well as deliberate and knowing misuse of my data.

Should you obtain the registered keeper's data from the DVLA without reasonable cause (e.g. if you do not fully comply with the IPC Code of Practice in terms of signage at this site, for example) please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach.

For the avoidance of doubt, I do not give you consent to process data relating to me or this vehicle, whether you have already obtained it or not. I deny liability for any sum at all and you must consider this letter a Section 10 Notice under the DPA. You are required to respond within 21 days.

Yours faithfully,
XXXXXXXXX

I think we're there now with my draft defence. Therefore I am going to post the entire thing, with the additional sections that should be templated. That way people can ensure I haven't missed anything, as this has been going on for some time and I've made lots of revisions haha.

Draft defence:

IN THE MILTON KEYNES COUNTY COURT

Claim No. XXXXX

BETWEEN:

Excel Parking Services Limited

Claimant

– and –

Defendant

XXXXX

__________________________________________________________

DRAFT DEFENCE OF XXXXX

__________________________________________________________

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.   It is admitted that the Defendant was the registered keeper of the vehicle. However over 55 months have passed since the alleged event and therefore, the Defendant cannot be sure who was driving on an unremarkable day so long ago.

 

3.   Therefore the Defendant is unable to admit or deny that he was the driver and therefore requires the claimant to prove so. Furthermore upon receiving the aforementioned Notice of Keeper (NTK) from the Claimant, no person was able to identify seeing a Notice to Driver (NTD) affixed to the vehicle in question.

 

4.   The Claimant repeatedly refused to provide the Defendant with photographs etc when requested during the original appeal in 2017, therefore the Defendant cannot be sure of the full facts. When the Defendant discovered they had a surprise CCJ filed against themselves, they sent the Claimant's Data Protection Officer an official Subject Access Request on 04/072021. The Claimant also ignored a follow up email sent on 07/07/2021 from the Defendant, chasing the SAR. By law, the Claimant should have responded without delay and within one month of receipt of the request. 

5.   On 16/09/2021 the Defendant received a SAR file from the Claimant, over 2 months after the SAR was requested. The Claimant stated they had never received the SAR from the Defendant. However the Defendant can provide date and time stamped emails proving that the request was sent. It contained no new information that pertains to the Defendant's defence.  

6.   This was a simple request and therefore there are no mitigating circumstances to allow for an extension, should one have been required. Therefore by law, the Claimant should have responded without delay and within one month of receipt of the request. Therefore the Claimant refused the Defendant's legal right of access, as they did in 2017 during the Defendant's original appeal.

7.   Furthermore, a file sent from the Claimant in the SAR documents was for a “Notice of change of legal representation”. The Claimant ticked box C of this form, declaring they had served the Defendant of the claim with notice of this change, which they did not. They signed this document, therefore declaring it as truth. I believe that this, along with my Witness Statement and Supplementary Witness, show  that this is further proof of a pattern of deceitful and illegal behaviour from the Claimant. The Claimant has continuously attempted to hamper and mislead the Defendant and therefore subsequently the Court. Therefore their actions could be considered contempt of court. 

8.  As the registered keeper, the first the Defendant heard about this alleged parking charge was via post. The only photos provided at the time on the alleged PCN were two blurry ones, where the car's registration plate could barely be made out. The claimant has demonstrated no evidence of non-payment of a parking ticket, nor failure to display, nor any breach of contract. In the Defendant's Subject Access request, the Claimant was asked to provide a PDT machine record from the day of the alleged parking charge, of all payments made. They did not supply this.

9.   The photos the Claimant has provided in their witness statement are of signage in daylight on completely different dates, potentially over 4 years since the alleged offence.  As can be seen on the PCN car photos, it was extremely dark when the alleged event took place. Therefore these signs will not have been as clear or as easy to spot, if they were even present in 2017.

10.   The aerial view they Claimant has created shows just one PDT machine (no proof it was working) and a couple of 'entrance signs' and a single ANPR sign but zero 'information signs', none whatsoever. Therefore this cannot be considered evidence of an agreed contract by the driver.

11.   The Defendant has been hounded and harassed by a bombardment of ‘debt recovery’ letters. It should also be pointed out that the Defendant cannot be held liable, due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4

12.  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.

13.   It is denied that the exaggerated sum sought is recoverable.  The Defendant's position is that this money claim 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.

14.   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.  

15.   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').

16..   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.

 

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

17.   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.  

18.   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.

19.   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.  

20.   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.

21.   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.

22.   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.

23.   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.

 

24.   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:

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

       (b) The Defendant therefore asks the Court to consider his Schedule of Costs.

       (c) 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.

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

Statement of Truth:

I, XXXXXX, the Defendant, believe that the facts stated in this draft 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.

Signed: __XXXXXXXX__

Dated: ____19/09/2021___________