PCN - Court Claim issued - need help!

Mullers247 · 31 December 2018 at 12:58PM

Hi,

I am trying to help my Dad with defending a court claim he has received from BW Legal on behalf of National Car Parks Limited, it looks like he has ignored previous letters they have sent so they have now sent him a claim form from county court.

I would like some help on trying to defend this but having read some of the forums it feels like we have very limited time now (having read about raising SAR etc). The Notice has come from him parking in an NCP car park with a valid ticket (or so he thought) but he thinks he has entered the wrong reg as he always buys a ticket.

Unfortuntely he no longer has the tickect (offence was back in June) - is this worth defending? I have told him he needs to log the AOC ASAP if he wishes to defend it but he has asked me to help with a defence, I havent managed to find a similar case online (the ones I did find where earlier in the process) so any help/direction for reading would be appreciated.

the court claim form was issued on 19/12/18 and I have told him to get the AOC done ASAP.

if you can offer any help please let me know as I think he is lean ing towards paying this but it is now £242

KeithP · 31 December 2018 at 2:26PM

Mullers247 wrote: »

the court claim form was issued on 19/12/18...

With a Claim Issue Date of 19th December, you have until Monday 7th January to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox link from post #2 of the NEWBIES FAQ sticky thread.

Having done the AoS, you then have until 4pm on Monday 21st January 2019 to file your Defence.

That's three weeks away. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.

When you are happy with the content, your Defence should be filed via email as suggested here:

Sign it and date it.
Scan the signed document back in and save it as a pdf.
Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Mullers247 · 15 January 2019 at 2:46PM

Hi,

could someone please take a look at the defence I have written for my Dad and offer any advise on improvements or provide feedback?

I have until 21st Jan to submit - I have also applied for a SAR from NCP and sent a copy to BW Legal - not sure if I am too late but I suspect they paid for a ticket and entered the wrong Vehicle Reg!!

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Defendant denies he was the driver of the vehicle in question at the time of the alleged incident.

3. It is believed that it will be a matter of common ground that claim relates to a purported debt as the result of the issue of a Parking Charge Notice (PCN) in relation to an alleged breach of the terms and conditions by the driver of the vehicle XXXXXX when it was parked XXXXXXXXXX on XXXXX 2018.

3.1. The PCN stated the contravention as 'Parked without payment' and this contravention is denied. The Defendant denies liability for the purported parking charge (penalty), the claimant has shown no evidence of 'Parked without payment'.

4. It is denied that:

a. A contract was formed to pay anything more than the advertised tariff;

b. There was any agreement to pay a further penalty parking charge;

c. That there were Terms and Conditions prominently displayed around the site which prominently displayed the £60 penalty, in at least as large lettering as the tariffs shown at the machine.

d. That in addition to the parking charge there was an agreement to pay additional and unspecified additional sums;

e. the claimant in fact expended the claimed additional sums;

f. The claimant company fully complied with their obligations within the International Parking Community Code of Practice, of which they were member at the time.

5. The claim appears to be based upon damages for breach of contract. However, it is denied any contract existed. Accordingly, it is denied that the Defendant breached any contractual terms, whether express, implied, or by conduct.

5.2. Further, the Claimant will no doubt hope to convince the court that a 'relevant contract' existed and was breached. As this would be a consumer contract, it must be 'fair' and 'transparent' as set out in the Consumer Rights Act 2015, and must also be a valid and enforceable payment contract that is not unconscionable, given the facts of the case. The Defendant avers that this punitive charge fails in all respects.

5.2.2. And the Claimant would have the court believe that a 'relevant obligation' existed, which under the Protection of Freedoms Act 2012 (setting out the will of Parliament for parking tickets issued on private land, even if a Claimant is not relying upon that Act) is defined as ''an obligation arising under the terms of a relevant contract''.

5.2.3. The Defendant avers that there was no such obligation or burden that could fairly and squarely fall at the feet of the Defendant that day, and that such an imbalance in consumer rights and interests certainly falls under Part 2 'Prohibitions' of the Consumer Protection from Unfair Trading Regulations 2008.

6. The Claimant may also try to rely upon the completely different Supreme Court case of ParkingEye Ltd v Beavis [2015] UKSC 67. However, the Defendant avers that decision confirms the assertion that this charge is unconscionable, given the facts. To quote from the decision in Beavis:

Para 108: ''But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85''.

Para 199: ''What matters is that a charge of the order of £85 [...] is an understandable ingredient of a -scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.''

Para 205: ''The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.''

6.1 - The signage on the site in question is unclear, unremarkable and not prominent on site so no contract has been formed with driver(s) to pay £60, or any additional fee charged if unpaid in 28 days. This distinguishes this case it from the Beavis case

6.2. It is not believed that the signage on site at the time included any stated additional costs or surcharges nor even that the £60 was legible on each occasion. No sum payable to this Claimant was accepted nor even known about by any driver; they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

6.3. The penalty represents neither a necessary deterrent, nor an understandable ingredient of a scheme serving legitimate interests, and the Beavis case is distinguished.

6.4. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes and National Car Parks Limited have not shown any valid 'legitimate interest' allowing them the unusual right to pursue anything more than a genuine pre-estimate of loss.

6.5. If the driver/s on each occasion were considered to be trespassers if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

7. Further and in the alternative, the Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices under defined parameters (including when caused by failure of their own data processing/excessive storage) and to form/offer contracts in their own name, and to pursue payment by means of litigation.

8. The Protection of Freedom Act 2012 Schedule 4 has not being complied with. The registered keeper is unaware of the PCN and it is not known who the driver was, as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £60 charge and prescribed Notice to Keeper letters in time/with mandatory wording.

9. The provision is a penalty and not a genuine pre-estimate of loss for the following reasons: (a) as the Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking on the site in question; (b) the amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable; © the penalty bears no relation to the circumstances because it remains the same no matter whether a motorist overstays by ten seconds or ten years; and (d) the clause is specifically expressed to be a parking charge on the Claimant's signs.

10. As the POFA restricts liability to the sum of the parking charge itself and the BPA Code of Practice has a ceiling of £100 which at the time, made it a condition that any charge issued must be based upon a GPEOL, the amounts claimed are excessive and unconscionable. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs - and they are put to strict proof that they have actually incurred and can lawfully add an extra £179.28 to each PCN and that those sums formed part of the contract in the first instance.

11. It is believed that this Claimant has not adhered to the IPC Code of Practice and is put to strict proof of full compliance.

12. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Mullers247 · 15 January 2019 at 2:48PM

6.5 has been removed as not relevant - copied accidently from another defence.

Coupon-mad · 15 January 2019 at 3:05PM

Dad MUST NOT 'deny being the driver' as that would be a lie. Just defend as driver.

NCP are not in the IPC, so change that. The BPA CoP applies. Not the IPC.

4c should talk about £100 penalty (not £60 which was the bribe/discount sum).

Remove #8 #9 and #10. All really old and the GPEOL argument has no legs.

Why not start again and simply use bargepole's concise defence from the NEWBIES thread, and add this as the 'facts' paragraph:

The PCN arose after parking in an NCP car park with a valid ticket, and the Defendant has had to guess what the contravention alleged actually was. The Defendant always buys a ticket and can only surmise that the keypad failed to record the full VRN on this occasion, however the Claimant had the correct VRN all along from their other data stream (ANPR images) and could certainly match the payment to the vehicle.

The Claimant appears to believe they can penalise regular paying drivers for a keypad or system failure to record the full VRN, none of which is likely to be the fault of the Defendant, and even if there was a digit or two transposed by the machine, the contravention as described, did not occur.

DO NOT assume the typo was his fault. We always say 'keypad failure'.

KeithP · 15 January 2019 at 3:05PM

Did you do the Acknowledgement of Service before 7th January?

Mullers247 · 15 January 2019 at 3:06PM

thank you Coupon-Mad that is great help! will change these now!

Mullers247 · 15 January 2019 at 3:11PM

Hi Keith,

yes AOS was done by my Mum on behalf of Dad. I keep asking her to check it all went through but she has forgotten the password so told her to try and find it ASAP.

Le_Kirk · 15 January 2019 at 3:14PM

Mullers247 wrote: »

AOS was done by my Mum on behalf of Dad. I keep asking her to check it all went through but she has forgotten the password so told her to try and find it ASAP.

If she did it using MCOL via the Government Gateway account, the user name and password would have been sent to her/your Dad by post so nothing to "forget."

Mullers247 · 15 January 2019 at 3:16PM

I don't believe they have anything in the post - I will check with her.

Le_Kirk · 15 January 2019 at 3:18PM

Must have changed the system then. But is there a "forgot password" link?

ETA. Just been to MCOL site and you do indeed log-in with a Gateway user name and password and there is (as well as dire warnings not to forget your password) a "forgot password" link.

PCN - Court Claim issued - need help!

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