GREAT ANGLIA RAILWAY - NCP PCN - BW LEGAL LETTER OF CLAIM

fraglet

Hi all, this is the proposed response, this is munged together from various parts of the forum so please let me know if I have gone overboard or its total nonsense I literally have no idea what im doing here !

Thanks so much for your help.

I received an NTK in February 2022 from NCP for an alleged parking violation in November 2021 at what subsequently appears to be an Greater Anglia Station car park, although the location of the incident is still unclear.

On the PCN the location is simply referred to as "Bishops Stortford Premium" so its difficult to be sure that this is the location in question.

An appeal was sent to NCP on the basis that I couldnt identify where the location in the first instance, and also to raise the issue that the ticket took 3 months to be issued.

The appeal was sent via registered post, I have retained the receipt and certificate of posting, and tracking shows it was delivered. This evidence is attached.

No response was received from NCP

Given I had no response I did not go through any further appeals process with POPLA as I had no number to do so.

The failure of NCP to respond is a flagrant breach of the Code of Practice to the BPA. I require a working POPLA code from their client, immediately, and the case to be put on hold (or returned to NCP) for sufficient time to go through that ADR.

A formal complaint to the NCP, BPA, Greater Anglia Railways and my MP is being prepared and will be issued forthwith.

Despite previous requests I note that you continue to harass me over non-existent alleged debts owed to your client NCP, this continues to induce significant anxiety, stress and sleepless nights. 

Any debt is denied but I am seeking debt advice from a reputable online source. As such, in accordance with the PAP for Debt Claims, you must now put the matter on hold for at least 30 days from receipt of this communication.

A subject access request has been made to your client.

I again re-iterate that your client failed to respond to the “appeal” which was delivered tracked to their offices on 25/02/2022, certificate of posting and tracking receipts are retained for evidence.

Required Information from you

I now request that you supply all of the following information after the 30 day period and certainly before commencing court action.

1.    Signage photographs that your client intends to rely upon, clearly showing terms, including proof that they were in place at the location where you claim the incident occurred.

 2.    As NCP does not have a proprietary interest in the land in question, I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions, such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, is key evidence to define what NCP is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement. Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which on the basis of information on Greater Anglia’s own website, would appear to be longer than the bare minimum times set out in the BPA CoP), and basic information such as the land boundary and bays where enforcement applies/does not apply. Witness statements would also fail to provide evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Section 7 of the BPA CoP defines the mandatory requirements on landowner authority. Specifically, Paragraph 7.1 states that “if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.”

I require you to provide a duly certified copy of this written authorisation.

3.    Further, paragraph 7.2 states that “if the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.”

Paragraph 7.3 goes onto clarify what the written authorisation must set out, namely:
(a) The definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
(b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
(c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement.
(d) Who has the responsibility for putting up and maintaining signs.
(e) The definition of the services provided by each party to the agreement.

NCP have no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that NCP are entitled to pursue these charges in their own right (not that a keeper can be liable anyway on non-relevant land and NCP cannot enforce byelaws themselves, only the Train Operating Company or site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court).

I require NCP to provide a full unredacted copy of the contemporaneous, signed and dated contract with the landowner. It will not be sufficient for NCP merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner, not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. I put NCP to strict proof of compliance with all of the above requirements.

4.    NCP has provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA CoP. Further, paragraph 20.5a of the BPA CoP states that when issuing a parking charge notice the operator “may use photographs as evidence that a vehicle was parked in an unauthorised way… A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered”

Whilst NCP has included photos of the car on the Parking Charge Notice to Keeper, the photos are not dated or time stamped, rather these details are added to the letter. The same is true on the NCP PCN website. This is contrary to paragraph 20.5a of the BPA CoP. The PCNtK also shows no parking time, merely images of a vehicle and a number plate corresponding with that of the vehicle in question. There is no connection demonstrated whatsoever with the car park in question. Whilst times are shown at the bottom of two images on the website, these times do not equate to any single evidenced period of parking. By NCP's own admission on their PCNtK, one of these times is claimed to be the exit time of the vehicle. There is no evidence of a single period of parking and this cannot reasonably be assumed. Since there is no evidence of actual parking times this would fail the requirements of paragraph 9(2)(a) of PoFA (notwithstanding my earlier point on byelaws) which states: “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

Consequently, NCP cannot demonstrate that these dates and times are correct and relate to the actual recording of the ANPR camera(s). I therefore require NCP to provide records with the location of the cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised to ensure the accuracy of the ANPR images. I also ask them to prove that the times quoted in the PCNtK are directly linked to the cameras in question.

This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times. It is vital that NCP must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. NCP has not provided any evidence to show that their system is reliable, accurate or maintained.

Estimated Claim

I deny the alleged contravention ever took place and dispute the full amount of any alleged debt owed. The driver appears to have allegedly parked in what would appear to be a station car park, in which your client has no interest in.

Entry and exit times are not proof that the vehicle was parked on your client's site between these times.

Your letter contains insufficient detail of the claim and fails to provide copies of evidence your client places reliance upon.

The estimated claim is alarmist, intimidating and contains a substantial charge additional to the parking charge, which was not £170 and is in any event, denied in its entirety.

The additional charge - variously described as 'initial legal costs' or 'debt collection' depending on how the mood seems to take BW Legal in your template letters - is not recoverable under the Protection of Freedoms Act 2012, Schedule 4, nor with reference to the judgment in ParkingEye Ltd v Beavis [2015] UKSC 67 where only £85 was recovered and it was held that such a case cannot be pleaded in damages.

In addition, whilst the CPRs allow interest to be claimed, it is unreasonable to attempt to claim interest where the time that has passed is wholly due to your client's own inaction and choice in failing to pursue this meritless case in a timely fashion.

According to Ladak v DRC Locums UKEAT/0488/13/LA a Claimant can only recover the direct and provable costs of the time spent preparing the claim in a legal capacity, not any administration costs allegedly incurred by already remunerated administrative staff.

Given the fact that BW Legal boasted in Bagri v BW Legal Ltd of processing 'millions' of claims with an admin team (and only a handful of solicitors), the Defendant avers that no solicitor is likely to have supervised this current batch of cut & paste robo-claims.

It is an abuse of process for a Claimant to issue a knowingly inflated claim for additional sums which it is not entitled to recover and the court will be invited to strike out the claim.

Further, CPR 44.3 (2) states:
''Where the amount of costs is to be assessed on the standard basis, the court will –
(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and
(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

Enclosures
I will not be filling in financial forms. Your parking firm client is not entitled to such data and there is no debt to discuss.

What you need to do now
(a) Advise your client to cancel this vexatious claim to avoid wasted legal action and counterclaim

(b) Ensure that your client provides a a working POPLA code immediately, and the case to be put on hold (or return to NCP) for sufficient time to go through that ADR. 

(c) Given that I have duly informed you that the debt is disputed and I am seeking debt advice from a reputable online source, in accordance with the PAP for Debt Claims you must now put the matter on hold for at least 30 days from receipt of this communication.

(d) Once the 30 day period has passed you must comply with the PAP for debt claims and supply me with the requested information that does not fall under the SAR, as described above. This must be supplied in advance of any claim in order to comply with the PAP.

yours faithfully,

fraglet

I have now also complained to NCP, BPA, Greater Anglia Railway and my MP,  POPLA wouldnt let me complain, but I realised they weren't on the list afterwards.

Ill send the letter above to BW Legal today.

Thanks for all your support, you are doing a great job helping us all to stand up for our rights.

1505grandad

"4.    NCP has provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA CoP."  -  and other paras.

A heads-up if not yet sent  -  you should be using/quoting from BPA CoP version 8 dated January 2020  -  the wording is similar but the para numbers are slightly different.

B789

fraglet said:

...An appeal was sent to NCP on the basis that we couldnt identify where the location in the first instance, and also to raise the issue that the ticket took 3 months to be issued.

The appeal was sent via registered post, we retained the receipt and certificate of posting, and tracking shows it was delivered.

No evidence has been supplied lawfully showing that NCP are entitled to pursue these charges in their own right (not that a keeper can be liable anyway on non-relevant land and NCP cannot enforce byelaws themselves, only the Train Operating Company or site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court).

In your original appeal, did you admit who the DRIVER was?