Letter of Claim - Napier Parking Limited - BW Legal

Delamarmalade

Hi, 

I’ve read the Newbie posts and followed them, i.e. appeal letter, ignored subsequent letters, and am now at the ‘Letter of Claim’ stage. I’ve looked at the threads on the ‘Letter of Claim’ stage and drafted a response (a combination of the suggested responses for this stage, based on my circumstances). The original PCN letter was non-POFA compliant. 

The response (which I will send via email) is drafted as follows, and I would really appreciate some feedback on any additional points needed or amends (should I include specific circumstances)? Thank you! 

Also wanted to say thanks to all for the great content and support on here! 

Dear Sirs,

Your Ref: xxxxx

Proposed Legal Proceedings

Claimant: Napier Parking Limited 

I refer to your letter of claim.

Kindly revert to Napier Parking Limited with the following:

I am the registered keeper of the vehicle. I am not obliged to identify the driver and I decline to do so. As there is no legal presumption that the keeper of a vehicle was its driver on any particular occasion, your client cannot pursue me as driver (see VCS v Edward, 2023). 

As your client cannot pursue me as driver or keeper, it would be an abuse of the court’s process for your client to issue a claim against me and I will defend any such claim vigorously and seek costs in relation to your client’s unreasonable conduct.

I have researched the PoFA 2012, and Napier Parking Limited must cancel and erase my data, as I am not the liable party.

If you persist in processing my data and in the event of filing a court claim, take note that I will file a Part 20 counterclaim for not less than £500.  This will be claimed as damages for distress arising as a result of clear breaches of the DPA 2018 and/or the Protection From Harassment Act 1997.

I will rely upon the case of Simon Clay v Civil Enforcement Ltd and similar cases that have succeeded.  

The alleged debt is disputed and any court proceedings will be vigorously defended.

I note that the amount being claimed has increased by a hugely exaggerated amount which the Government called "extorting money from motorists".

I have two questions, and under the PAP I am entitled to specific answers:

1. Am I to understand that the additional £60 represents what you dress up as a 'Debt Recovery' fee, and if so, is this net or inclusive of VAT? If the latter, would you kindly explain why I am being asked to pay the operator’s VAT?

2. With regard to the principal alleged PCN sum: Is this damages, or will it be pleaded as consideration for parking?

Yours faithfully

Coupon-mad

Welcome!

I doubt this is true about a Napier NTK:

As there is no legal presumption that the keeper of a vehicle was its driver on any particular occasion, your client cannot pursue me as driver (see VCS v Edward, 2023).

As your client cannot pursue me as driver or keeper, it would be an abuse of the court’s process for your client to issue a claim against me and I will defend any such claim vigorously and seek costs in relation to your client’s unreasonable conduct.

Show us both sides of the NTK (redacted).

Gr1pr

Delamarmalade said:

The original PCN letter was non-POFA compliant. 

So why do you strongly suggest that the NTK PCN letter fails to comply with POFA 2012. ?

Delamarmalade

These comments. Is that not correct then? 

Coupon-mad

That NTK is POFA compliant.

As expected from Napier.

In my reply last year I was merely responding to your question about some irrelevant words that are nothing to do with POFA Sch4 as it relates to you (I assume this wasn't a hire car?).

Delamarmalade

Ok thanks for confirming (it wasn’t my question btw, I’d seen it on the forum when researching), and I’ve obviously misunderstood. How should I respond then, and what chance do I have? 

Delamarmalade

It’s not a car hire 

Gr1pr

So adapt your proposed response draft you showed us earlier, removing or editing the incorrect sections 

Nobody can assess chances, that is just speculation and if you study recent Twenty cases on here you would see that they are not about chances, especially because it could depend on Judge Bingo at your local civil court 

All I can say is that you better have a good defence and an excellent WS bundle after Napier start any court claim 

Delamarmalade

I’ve added the specifics of what happened and removed those sections:

Dear Sirs,

Your Ref. ############

Proposed Legal Proceedings

Claimant: xxxxxx xxxxxxxx Ltd

I refer to your your letter of claim.

The alleged debt is disputed and any court proceedings will be vigorously defended.

I am sourcing and seeking independent debt advice and as such, I formally request that this matter be put on hold for an additional 30 days, in accordance with the Pre-Action Protocol for Debt Claims 2017 ('the PAP').

I note that the amount being claimed has increased by a hugely exaggerated amount which the Government called "extorting money from motorists".

I was not the driver - the driver had every intention of paying for parking, the driver paid for a parking ticket by app and before the time that had been paid for ran out, the driver tried to increase the stay by paying more on app, however the phone battery had died and the driver was not able to. The driver made their way back to the car as soon as they could, but they are not familiar with the area and have a disability so didn’t find it easily. 

I have two questions, and under the PAP I am entitled to specific answers:

1. Am I to understand that the additional £60 represents what you dress up as a 'Debt Recovery' fee, and if so, is this net or inclusive of VAT? If the latter, would you kindly explain why I am being asked to pay the operator’s VAT?

2. With regard to the principal alleged PCN sum: Is this damages, or will it be pleaded as consideration for parking?

Yours faithfully

Coupon-mad

I think your best bet is to give the name and address of the driver and if they still sue you (knowing you'd named the driver and their postal address) then you can't lose.

Replace this:

"I was not the driver - the driver had every intention of paying for parking, the driver paid for a parking ticket by app and before the time that had been paid for ran out, the driver tried to increase the stay by paying more on app, however the phone battery had died and the driver was not able to. The driver made their way back to the car as soon as they could, but they are not familiar with the area and have a disability so didn’t find it easily."

with this:

I was not the driver. The driver has a longterm disability and evidence of that is attached (blue badge/medical evidence) and they can be reached at ... GIVE THEIR POSTAL ADDRESS.

The driver paid for a parking ticket by app and made their way back to the car as soon as they could, but they are not familiar with the area and have a disability so required an extended period of time for the money paid. They have 'protected characteristics' as defined in the Equality Act 2010 ('the EA') and are legally entitled to more time than an able bodied person.

See the precedent set just after the EA was enacted: the legal victory against Norwich and Lincoln Councils, achieved by the IPC's friend Helen Dolphin:

https://www.wake-smith.co.uk/latest-news/news-archive/2011/06/20/Council-Car-Park-Case-Settled-A-Victory-for-Blue-Badge-Holders

All parking providers must comply with the EA.  There is no excuse or justification that the operator didn't know about the driver's disability need. That would only relate to an accusation of 'direct discrimination' which is not the case.

It is my position (and the driver's position) that by not providing a way - as all Local Authorities now do, and ParkingEye and Horizon do, for example - for a disabled driver to claim more time without paying more, Napier have committed an offence: 'indirect discrimination'.

Kindly explain Napier's intended defence to that because the driver will counterclaim if they try a small claim (or I will, if Napier illegally sue me).

Delamarmalade

Thank you Coupon-mad, that’s really helpful. I can provide medical evidence of the drivers long term disability but it’s not a blue badge related disability. Does this change anything in relation to the wording I should include. Will they then pursue the driver (which would cause the driver lots of stress)? What if the driver is at the same address as the keeper? Does that change anything?