4 Year Old PCN with bonus PCN

Coupon-mad

With a Claim Issue Date of 11th July, and having filed an Acknowledgment of Service already (but after just 3 days) you have until 4pm on 11th August to file your Defence x 2.

Plenty of time to produce a Defence, but please don't leave it to the last minute.

To find our Template 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 x 2.

Do not try to 'Start Defence' via the MoneyClaimOnline website. Leave that alone!  Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'. Defence and the subsequent N180 form (see NEWBIES thread) is done by email.

If they knew that these 2 issues related to the same data subject (you) and if the claims relate to the same basis of facts (same location and alleged breach, same terms, same signs) then include as well in your defences, the usual wording about consolidating the claims into one hearing, and cause of action estoppel.

Search the forum for Henderson v Henderson.

snores

Coupon-mad said:

With a Claim Issue Date of 11th July, and having filed an Acknowledgment of Service already (but after just 3 days) you have until 4pm on 11th August to file your Defence x 2.

Plenty of time to produce a Defence, but please don't leave it to the last minute.

To find our Template 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 x 2.

Do not try to 'Start Defence' via the MoneyClaimOnline website. Leave that alone!  Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'. Defence and the subsequent N180 form (see NEWBIES thread) is done by email.

If they knew that these 2 issues related to the same data subject (you) and if the claims relate to the same basis of facts (same location and alleged breach, same terms, same signs) then include as well in your defences, the usual wording about consolidating the claims into one hearing, and cause of action estoppel.

Search the forum for Henderson v Henderson.

Thanks Coupon-Mad,

I was wondering if I could consolidate both into one, as it's a faff having to do two lots of work for essentially the same thing. I'll search the forum for the aforementioned thread.

I'll be leaving the MCOL website alone now thank you although it was such a pain to log in for whatever reason, that I'm glad I don't have to!

snores

Hi all, could I get some advice? I'm writing up my Defence and struggling to communicate what may have happened on the date in question. As I was not the driver but can't remember who it could have been, is it okay to state that but then also speculate as to what may have happened to the driver causing them to overstay? I've had a visit back to the carpark and the signage/lighting is inadequate but also as they rely on ANPR, it could have been that the driver entered to drop off and then left, and then re-entered later on to collect. I don't know if as a Defendant, you're given the scope to 'speculate' if you weren't the driver.
I know it's been mentioned that GN have never used POFA 2012 wording at all, neither in their PCNS nor their NTK/NTH letters, so cannot hold a non-driver liable - should I refrain from speculation at all as to what 'might have happened' and instead just mention this?

snores

Also, GN sent one of the PCNs within the 14 day notification period - should I still argue POFA?

Coupon-mad

 know it's been mentioned that GN have never used POFA 2012 wording at all, neither in their PCNS nor their NTK/NTH letters, so cannot hold a non-driver liable - should I refrain from speculation at all as to what 'might have happened' and instead just mention this?

Yes. No speculation.

Also add the wording you will have found about Henderson v Henderson and in each of your two duplicate defences refer to the other claim and point out this is an abuse of the court process and the claims must be consolidated or the second one struck out, due to cause of action estoppel. 

The fact that they sent a non-POFA NTK within 14 days doesn't make it a POFA one!

snores

Coupon-mad said:

 know it's been mentioned that GN have never used POFA 2012 wording at all, neither in their PCNS nor their NTK/NTH letters, so cannot hold a non-driver liable - should I refrain from speculation at all as to what 'might have happened' and instead just mention this?

Yes. No speculation.

Also add the wording you will have found about Henderson v Henderson and in each of your two duplicate defences refer to the other claim and point out this is an abuse of the court process and the claims must be consolidated or the second one struck out, due to cause of action estoppel. 

The fact that they sent a non-POFA NTK within 14 days doesn't make it a POFA one!

Thanks CM. I've added the wording about Henderson v Henderson too.

Honestly, I am reading up so much about POFA and I'm still struggling. I'm checking the NTK against POFA paragraph 9 and all subsections and it seems like the first NTK for my car, does tick all the points? I've read on this forum and on the Parking Pranksters blog that judges who aren't familiar with POFA are finding against defendants using POFA as their main defence, mainly because the defendants aren't that great at explaining the non-POFA ness but also that the judges deem an off word here or there in the NTKs, to be pedantic. I'm currently going through the first NTK that I received and marking off each subsection of POFA para 9 - can I post it here once I'm done to see if they have complied?

The other case with the hire car I think will be simpler for me because they didn't adhere to the timescales and didn't include any copies of the hire documents. I'll check the wording too but for me it seems the wording is compliant? I can't find any examples of a POFA compliant NTK compared against a non compliant one

Coupon-mad

It is simple. There is no 9(2) f wording that says the keeper will be liable, in a non-POFA NTK.

snores

Coupon-mad said:

It is simple. There is no 9(2) f wording that says the keeper will be liable, in a non-POFA NTK.

Thank you again, that really helps clear things up.

My Defence for the hire car is below - I think I've hopefully calculated the dates right. The Defence for my own car will only comprise of mentioning Para 9, subsection 2 (f).

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

 

The facts as known to the Defendant:

2. The facts are that the vehicle, registration XXX, of which the Defendant was the registered hirer, did enter the Urban Exchange car park on the 29/11/2017. The Defendant confirms that as the hirer of this vehicle, the Defendant is its keeper for the purpose of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”). It is admitted that the Defendant was the registered hirer of the vehicle in question, registration XXX but not the driver. The Defendant, cannot, with any reasonable certainty, state who the driver of the vehicle, registration XXX, was on the material date, due to it being a courtesy car from a dealership and multiple persons having access to the vehicle. There were multiple people insured on the original vehicle that this vehicle was loaned in place of. As this charge is from over four and a half years ago, the Defendant has no idea who to ask about it.

 

3.1. The Defendant believes that the Claimant is not entitled to any relief in the sum claimed, at all, due to the Claimant not complying with Schedule 4 of POFA, specifically Paragraphs 9(2)f, 13 and 14.

3.2. As stated in Paragraph 9(2) f of POFA 2012:

(2) “The notice must—

(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

 

The Claimant has not included this wording in their Notice to Hirer (NTH).

 

3.3. As stated in Paragraph 13(2) of POFA 2012...

"The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—

(a) A statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

(b) A copy of the hire agreement; and

(c) A copy of a statement of liability signed by the hirer under that hire agreement.

AND

Paragraph 14(2) and (3) of POFA 2012:

(2) The conditions are that —
(a) The creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;
(b) A period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and
(c) The vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.
(3) In sub-paragraph (2)(a) “the relevant period” is the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.

 

The Claimant was required to send the Notice to Hirer (NTH) to the Defendant (as Registered Keeper) within 21 days after receiving them from the lease/hire company. The Claimant failed to do so, as the date on the NTH was 18/01/2018 – which was 22 days after.

The Claimant was required to send hire documents to the Defendant no later than 49 days after the Notice to Keeper was sent to the hire company, however no such documents were ever sent.

As the Claimant has not complied with paragraphs 9(2)f, 13 (2) and 14 (2) of POFA 2012, the Claimant cannot rely on the provisions of the Act and hold the Defendant liable as keeper.

 

4. The Court is invited to take note that the Claimant has issued two current claims, numbers XXX and XXX, against the Defendant with substantially identical particulars.

The issuing of separate claims, by the same Claimant and for essentially the same cause of action, is an abuse of the civil litigation process. The long-established case law in Henderson -v- Henderson [1843] 67 ER 313, and more recent authorities, establishes the principle that when a matter becomes the subject of litigation, the parties are required to advance their whole case. In the event that similar matters proceed to claim issue, they must be particularised as a single claim and not as multiple separate cases, otherwise (as an extreme analogy) a builder purportedly owed money by an individual customer, could file a separate claim for each brick laid.

The facts of these cases are duplicated in every respect: Claimant, Defendant, location, parking charge breach allegation, and added unrecoverable 'debt collection' and/or 'legal' costs for each case, that are an abuse of process in themselves, given that the Claimant did not in fact ever incur such costs and that they are disallowed by virtue of the ceilings set in the POFA 2012 and the Supreme Court decision in ParkingEye Ltd v Beavis.

Multiple claims and disproportionate added costs run contrary to the overriding objective of CPR 1.1, the disposal of cases justly and at proportionate cost. The Court is invited to strike out the second claim due to cause of action estoppel - or in the alternative, to consolidate the claims to be determined at a single hearing, and vacate the other hearing, and the Defendants asks that these two cases be put before a Judge at the earliest opportunity - before allocation - to apply appropriate sanctions against the Claimant for a gross abuse of process and to strike out the imaginary and unrecoverable added 'damages/debt collector' costs, which do not exist even once, let alone multiple times per claim.

 

Followed by the rest of the points up to point 27 (but would be 28 in this case due to adding Henderson v Henderson at point 4)

Coupon-mad

Looks good to me but all paragraphs need a number so add lots more numbers and adjust the numbering of the template below your facts, accordingly.

Not sure about this line:

"As this charge is from over four and a half years ago, the Defendant has no idea who to ask about it."

Maybe change to:

As this charge is from over four and a half years ago, the Defendant has no idea which driver in the family (or company?) parked on the material dates given in the two near-duplicate claims the keeper is having to respond to.  However, it is the Defendant's case that they were not the driver, on the balance of probabilities because (what? Others drove that vehicle more often than not?  You had another vehicle you used more often?  This is a location you don't personally recognise?  Or somewhere that others in the family visited more than you in the daytime?  Or maybe this is a shopping or restaurant/pub/gym car park, and you were likely at work?).

 

1505grandad

"The Claimant was required to send the Notice to Hirer (NTH) to the Defendant (as Registered Keeper) within 21 days after receiving them from the lease/hire company. The Claimant failed to do so, as the date on the NTH was 18/01/2018 – which was 22 days after."

Should (this) correct?