Claim Form - NCP for parking in a disabled bay for 39 seconds

am1980

Hi, After receiving PCN's, followed by trace debt recovery then our friends at BW legal I've now received a claim form. Issue date 21 Dec 2022. This is for an alleged breach of terms by parking in a disabled bay in an NCP for 39 seconds (according to the "entry" and "exit" evidence on the PCN). A parking ticket was purchased, but a blue badge wasn't displayed. Maybe they had a warden going around if the only evidence is 39 seconds. 
Anyway, I presume I have a good case here, as they will be relying on the driver seeing signage in an empty carpark at night whilst focused on not hitting the walls in tight multistory carparks? I can't find any similar examples to this case atm, but will keep looking. 

I'll get the claim form filled in as per instructions on this forum. Thank you. 

KeithP

am1980 said:

I'll get the claim form filled in as per instructions on this forum. Thank you. 

I don't think there are any instructions like that here.    

am1980 said:

I've now received a claim form. Issue date 21 Dec 2022.

With a Claim Issue Date of 21st December, you have until Monday 9th January to file an Acknowledgment of Service but there is nothing to be gained by delaying it. 

To file an Acknowledgment of Service, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 23rd January 2023 to file your Defence.

That's almost three weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service guidance.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

am1980

Great thank you. You recently helped me with one for my parents (we're waiting on further court action) so I'll do the same with this one. Trying to understand the reasons for my defence (car park was empty, didn't know it was a disabled space etc) but with it being NCP I realise they rarely took anyone to court in the past... I presume that has now changed? 

Castle

am1980 said:

Great thank you. You recently helped me with one for my parents (we're waiting on further court action) so I'll do the same with this one. Trying to understand the reasons for my defence (car park was empty, didn't know it was a disabled space etc) but with it being NCP I realise they rarely took anyone to court in the past... I presume that has now changed? 

Probably desperate for money given that they have only just filed their accounts for the year ended 30th September 2021, which showed a £95 million loss; (although, better than 2020 when they lost £258 million).

am1980

Hi, please can you look into the below and let me know any feedback? Much appreciated. 

We can't for certain remember who was driving that date, as there were a few different carparks we entered and we don't live there so cannot be certain which one. Therefore we aren't sure whether points 4 and 7 are valid. I'm also aware that the numbers don't correlate just yet, but the final defence will have this corrected. Thank you in advance. 

_________________

DEFENCE

 

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. It is admitted that the Defendant was the registered keeper of the vehicle in question.

 

 

3. The Defendant was an occupant of the car at the time of the offence and denies entering into any agreement with the Claimant and had no idea that there was ANPR surveillance. 

 4. The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (POPLA) lead adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, “However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant.”, “A notice to keeper issued on the basis of evidence obtained using automatic number plate recognition (ANPR) should arrive on or before the fourteenth day after the parking event. Where a parking charge notice is fixed to the vehicle or handed to the driver, a traditional ‘parking ticket’, then a notice to keeper issued following that, should arrive between the twenty eighth and the fifty sixth day after the parking event. If these timescales are not complied with then keeper liability does not generally pass under Schedule 4”

 (POPLA report 2015)

5. The Defendant now believes that The Claim relates to threatening letters demanding money, which he originally believed to be a scam as there is evidence to suggest a payment was made to National Car parks ltd on the date of the alleged offence, corresponding with the time of the alleged offence.

6. Silently collecting VRN data in order to inflate a £4.90 ‘parking charge’ that was ultimately paid at the time, into £100 weeks later due to allegedly stopping in a parking space that the Claimant deems a contractual breach is excessive, untimely and intrusive to registered data subjects; especially when sent to registered keepers at their own homes.

 

7. The Defendant requires a copy of the contract (the signage terms on the material date) and a detailed explanation of the cause of action and on what basis they presume the Defendant liable. The Claim is pursuing the keeper/driver of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.  The Defendant’s research has revealed that this Claimant has been held by POPLA Adjudicators not to use the prescribed wording in Paragraph 9 of Schedule 4 of the POFA 2012. In such instances, there can be no keeper liability.

 

8. The signage that apparently forms the contract was not noticed by the driver, indicating it not being suitable for purpose. A Driver has multiple objectives whilst navigating a tight car parking facility safely; to do so does not include being vigilant for signs that may / may not attempt to convey terms that dictate who can park in what space, and what a breach of terms may include.

 

9. As this breach of terms allegedly involves parking in a disabled bay without displaying a blue badge, there must clearly be signage to identify to the driver which bay is for this purpose. National Car Parks ltd have yellow logo’s and yellow markings throughout their branding and licensed car parks, The Defendant puts The Claimant to strict proof that on the date of the alleged incident there was sufficient signage to allow the driver to be aware that the parking bay was marked disabled, whilst attempting to safely navigate the vehicle to allegedly park, whilst being aware of the contract that the driver allegedly entered into.

 

 

10. The Defendant puts The Claimant to strict proof that this farce is not merely a case of the driver reversing into an alleged disabled car park space before  driving away into a different space; where good faith has gone out of the window and a rogue parking operator decides to punish, rather than identify a possible error.  

Coupon-mad

Please can you delete the bulky replies with the rest of the Template?  We don't need to check all those paragraphs.  Please delete those posts.

Only your words please.  How can you say you were an occupant of the car but no idea who was driving?  Think again. It sounds dishonest...

Le_Kirk

3. The Defendant was an occupant of the car at the time of the offence and denies entering into any agreement with the Claimant and had no idea that there was ANPR surveillance. 

It is not (yet anyway) an offence to park in a car park - you could use "event"

Fruitcake

What was the reason given for issuing the NTK, and what do the PoC state? I cannot see how a PCN can have been issued for stopping in an accessible bay for 39 seconds. You mention ANPR as well, but unless the scamera is pointing directly at accessible bays, it's irrelevant to mention it.

State that the driver's identity is unknown in para 2.

Was the NTK PoFA compliant? It is pointless referring to keeper liability and the Greenslade report if it was.

am1980

Fruitcake said:

What was the reason given for issuing the NTK, and what do the PoC state? I cannot see how a PCN can have been issued for stopping in an accessible bay for 39 seconds. You mention ANPR as well, but unless the scamera is pointing directly at accessible bays, it's irrelevant to mention it.

State that the driver's identity is unknown in para 2.

Was the NTK PoFA compliant? It is pointless referring to keeper liability and the Greenslade report if it was.

I'm unsure whether it was PoFA compliant, therefore I will remove this. 

Coupon-mad said:

Please can you delete the bulky replies with the rest of the Template?  We don't need to check al those paragraphs.  Please delete those posts.

Only your words please.  How can you say you were an occupant of the car but no idea who was driving?  Think again. It sounds dishonest...

My wife and I visited the area for the weekend and parked in numerous car parks, sharing the driving. We cannot be 100% sure which one was driving in this specific car park and it would be disingenuous to say so. 

The template has now been removed now. I will also adapt and repost. Thank you. 

am1980

Fruitcake said:

What was the reason given for issuing the NTK, and what do the PoC state? I cannot see how a PCN can have been issued for stopping in an accessible bay for 39 seconds. You mention ANPR as well, but unless the scamera is pointing directly at accessible bays, it's irrelevant to mention it.

State that the driver's identity is unknown in para 2.

Was the NTK PoFA compliant? It is pointless referring to keeper liability and the Greenslade report if it was.

The NTK was for parking in a disabled bay without displaying a blue badge. Obviously we wouldn't have parked there had it been clear, and all carparks that weekend were deserted too so we wouldn't have had a need to park in one. 

am1980

 

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. It is admitted that the Defendant was the registered keeper of the vehicle in question.

 

3. The Defendant was an occupant of the car at the time of the alleged breach of terms and denies entering into any agreement with the Claimant. The Defendant and other family members shared driving duties over the weekend of the alleged breach of terms and cannot be certain who was driving, parking in numerous other car parks that weekend without incident.

 

4. The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (POPLA) lead adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, “However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant.”, “A notice to keeper issued on the basis of evidence obtained using automatic number plate recognition (ANPR) should arrive on or before the fourteenth day after the parking event. Where a parking charge notice is fixed to the vehicle or handed to the driver, a traditional ‘parking ticket’, then a notice to keeper issued following that, should arrive between the twenty eighth and the fifty sixth day after the parking event. If these timescales are not complied with then keeper liability does not generally pass under Schedule 4”

 (POPLA report 2015)

 

 

 

5. The Defendant now believes that The Claim relates to threatening letters demanding money, which The Defendant originally believed to be a scam. There is evidence to confirm a payment was made to National Car parks ltd on the date of the alleged offence for £4.90, corresponding with the time of the event.

 

6. Silently collecting VRN data in order to inflate a £4.90 ‘parking charge’ that was ultimately paid at the time, into £100 weeks later due to allegedly parking  in a disabled parking bay that the Claimant deems a contractual breach is excessive, untimely and intrusive to registered data subjects; especially when sent to registered keepers at their own homes.

 

7. The Defendant requires a copy of the contract (the signage terms on the material date) and a detailed explanation of the cause of action and on what basis they presume the Defendant liable. The Claim is pursuing the keeper/driver of the vehicle, indicating a failure to identify a Cause of Action. The Claimant is simply offering a menu of choices and failed to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5.  The Defendant’s research has revealed that this Claimant has been held by POPLA Adjudicators not to use the prescribed wording in Paragraph 9 of Schedule 4 of the POFA 2012. In such instances, there can be no keeper liability.

 

8. The signage that apparently forms the contract, including any terms stipulating what badges are required to be displayed whilst parking in specific bays, for how long, where the specific parking bays were located, and any other terms The Claimant intends to rely upon were not noticed by the driver, indicating the signs were not suitable for purpose. A Driver has multiple objectives whilst navigating a tight car parking facility safely; to do so does not include being vigilant for signs that may / may not attempt to convey terms that dictate who can park in what space, and what a breach of terms may include.

 

9. As this breach of terms allegedly involves parking in a disabled bay without displaying a blue badge, there must be clear signage to identify to the driver which bay is for this purpose. National Car Parks ltd have yellow logos, yellow markings and yellow paint throughout their branding and licensed car parks; many spaces look similar. The Defendant puts The Claimant to strict proof that on the date of the alleged incident there was sufficient signage to allow the driver to be aware that there were terms for specific parking bays, that the bays were clearly marked disabled and that the car was actually parked for a specific period of time that differs to any alleged breach of terms. The Defendant believes it to be unreasonable for a driver to be aware of terms written in small writing on signs that a driver has no reason to look at, whilst attempting to safely navigate a vehicle through a tight car park before allegedly parking in a tight bay.

 

10. The Defendant puts The Claimant to strict proof that this farce is not merely a case of the driver reversing into an alleged disabled car park space before paying and then driving away into a different space; where good faith has gone out of the window and a rogue parking operator decides to punish, rather than identify a possible error.