UKPC Court Claim

cabbbbbiria

Coupon-mad said:

I think the time & date is likely in the redacted bit of point 1 but happy to be proved wrong.

Bazarius said:

I’m not sure if this is already mentioned - the date of issue of the pcn is incorrect in the Claimant’s PoC .  It is fatal to their claim because the pcn doesn’t exist . 

Castle said:

Bazarius said:

I’m not sure if this is already mentioned - the date of issue of the pcn is incorrect in the Claimant’s PoC .  It is fatal to their claim because the pcn doesn’t exist . 

Unless it has been redacted in para 1 of the POC the date of the breach is missing.

In 1. on the Court form it states only the reg of the car and the location if that' what you mean?

E.G. "1. The Defendant (D) is indebted to the Claimant (c) for a Parking Charge(s) issued to vehicle [REG] at [Address and postcode]"

Bazarius

Coupon-mad said:

I think the time & date is likely in the redacted bit of point 1 but happy to be proved wrong.

It won’t be at point 1 .  It will say issued to vehicle (VRM) at location (address) 

that’s it . 

Always look out for this error and attack it hard near top  of the defence .   

DCBLEGAL won’t want to pay the fee to amend its PoC and likely to discontinue. 

Also attack that the contract on its signage does not give a specific deadline to pay on 95% of their signs . Only “discounted to £60 within 14 days.   CRA 2015 comes into play and Thornton v Shoe lane parking is the persuasive caselaw regarding new terms of the contract after the it had already commenced - the new 28 days deadline comes too late . 

Coupon-mad

Bazarius said:

Coupon-mad said:

I think the time & date is likely in the redacted bit of point 1 but happy to be proved wrong.

It won’t be at point 1 .  It will say issued to vehicle (VRM) at location (address) 

that’s it . 

Always look out for this error and attack it hard near top  of the defence .   

DCBLEGAL won’t want to pay the fee to amend its PoC and likely to discontinue. 

Good point. We should look for that in future.

Are you a pepipoo poster who has moved over here? Good to read your posts. 

Bazarius

Coupon-mad said:

Bazarius said:

Coupon-mad said:

I think the time & date is likely in the redacted bit of point 1 but happy to be proved wrong.

It won’t be at point 1 .  It will say issued to vehicle (VRM) at location (address) 

that’s it . 

Always look out for this error and attack it hard near top  of the defence .   

DCBLEGAL won’t want to pay the fee to amend its PoC and likely to discontinue. 

Good point. We should look for that in future.

Are you a pepipoo poster who has moved over here? Good to read your posts. 

Clue is VCS v Ferguson you know who I am ;-) 

Coupon-mad

Reckon so!

Could tell you were someone I'd know.

pustit

Has RedX returned as well

Bazarius

Coupon-mad said:

Reckon so!

Could tell you were someone I'd know.

This section might be useful to use in your PoFA  defences if you wish ?

1. It is an abuse of process for the Claimant to knowingly artificially inflate a claim against the registered keeper , claiming “Damages” that are not properly  available to them under the statute. 
2. The Explanatory Notes attached with the Government’s Schedule 4 Protection of Freedoms Act 2012 legislation shows the Parliament’s clear intentions .  With reference to Para 4.5 and 4.6 - the maximum it can claim is the amount as it stood  when the notice to the driver was issued  , in this case it is a maximum of £100 and no more.
   

The following excerpt are taken from the Explanatory notes attached with Schedule 4 Protection of Freedoms Act 2012  which can be viewed on the  government legislative  website 

“221. Paragraph 4 provides that the creditor has a right to recover unpaid parking charges from the keeper of the relevant vehicle if the conditions set out in paragraphs 5, 6, 11 and 12 are satisfied. The creditor is not obliged to pursue unpaid parking charges through this scheme and may seek to do so through other means but they may not use the scheme provided for here to secure double recovery of unpaid parking charges (paragraph 4(6)), nor will they have the right to pursue the keeper, as opposed to the driver, of the vehicle where they have sufficient details of the driver’s identity. The right to reclaim unpaid parking charges from the vehicle keeper does not apply in cases where the vehicle has been stolen before it was parked, (paragraphs 4(2) to (3)), or in certain circumstances where the vehicle in question was a hire vehicle (paragraph 4(7)). The creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (paragraph 4(5)).

Coupon-mad

Totally on the same page as you with those Explanatory Notes. I recall finding and highlighting them years ago to the BMPA Group off-forum.

And the Supreme Court agrees that such Notes are a proper aid to construing an Act:

https://publications.parliament.uk/pa/ld200405/ldjudgmt/jd041125/mont-1.htm

https://publications.parliament.uk/pa/ld200405/ldjudgmt/jd041125/mont-2.htm

Judgments - Regina v. Montila and others (Appellants) (On Appeal from the Court of Appeal (Criminal Division)) 2004

"34.  The question then is whether headings and side notes, although unamendable, can be considered in construing a provision in an Act of Parliament. Account must, of course, be taken of the fact that these components were included in the Bill not for debate but for ease of reference. This indicates that less weight can be attached to them than to the parts of the Act that are open for consideration and debate in Parliament. But it is another matter to be required by a rule of law to disregard them altogether. One cannot ignore the fact that the headings and side notes are included on the face of the Bill throughout its passage through the Legislature. They are there for guidance. They provide the context for an examination of those parts of the Bill that are open for debate. Subject, of course, to the fact that they are unamendable, they ought to be open to consideration as part of the enactment when it reaches the statute book.

    35.  There is a further point that can be made. In Pickstone v Freemans Plc [1989] AC 66, 127 Lord Oliver of Aylmerton said that the explanatory note attached to a statutory instrument, although it was not of course part of the instrument, could be used to identify the mischief which it was attempting to remedy: see also Westminster City Council v Haywood (No 2) [2000] 2 All ER 634, 645, para 19 per Lightman J. In Coventry and Solihull Waste Disposal Co Ltd v Russell [1999] 1 WLR 2093, 2103, it was said that an explanatory note may be referred to as an aid to construction where the statutory instrument to which it is attached is ambiguous. In R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956, 2959B-C, Lord Steyn said that, in so far as the Explanatory Notes that since 1999 have accompanied a Bill on its introduction and are updated during the Parliamentary process cast light on the objective setting or contextual scene of the statute and the mischief at which it is aimed, such materials are always admissible aids to construction. It has become common practice for their Lordships to ask to be shown the Explanatory Notes when issues are raised about the meaning of words used in an enactment."

I will see what the DLUHC come up with in the final draft Impact Assessment & Code and then the Template Defence will change this year.

If needed, those Explanatory Notes might get a look in again. They were in a previous iteration of the template defence.  

LDast

So, based on the above information, have we not been emphasising enough in the defence of any claim made against a defendant as the “keeper” (rather than as the “driver”), that the “damages” or “debt recovery charges” added to the claim are an abuse of process?

Please correct me if I’m wrong, but a claim against the “keeper” as opposed to the “driver” cannot be made for more than the amount of the unpaid parking related charges as they stood when the notice to the “keeper” was issued, which are £100 (or whatever the amount on the NtK highlights).

The reasoning for the above statement is that PoFA 4(5) states:

4(5) The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).

The explanatory notes to the legislation at 221 state:

“The creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued(paragraph 4(5)).

So, if a claim is issued against a defendant, holding them liable as “keeper” under PoFA, the claim cannot include the fake debt recovery costs (which we already know but have not included this specific argument). Any claim for more than the original £100 (or whatever amount was highlighted in the original NtK) is an abuse of process and therefore unreasonable behaviour by the claimant.

* Explanatory Notes are documents that typically accompany primary legislation (e.g. an Act or Measure). The text is created by the government department responsible for the subject matter of the Act (or Measure) to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Public Acts except Appropriation, Consolidated Fund, Finance and Consolidation Acts.

The Explanatory Note is intended to give a concise and clear statement of the substance of the instrument. The instrument itself may also be accompanied by a separate explanatory document.

https://www.legislation.gov.uk/ukpga/2012/9/notes/division/5/1/3/3

Coupon-mad

Yep, posted by myself and @Bazarius above. With Supreme Court case law confirming that Explanatory Notes are part of the legislation.