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    • Bell-liv
    • By Bell-liv 25th Jan 17, 9:54 PM
    • 14Posts
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    Never issued PCN and can prove, yet appeal still rejected
    • #1
    • 25th Jan 17, 9:54 PM
    Never issued PCN and can prove, yet appeal still rejected 25th Jan 17 at 9:54 PM
    Advice and assistance appreciated...
    On 17th Dec I received a NTK from Millenium Parking Services for a private parking offence committed on 8th Nov. The NTK stated that 'a PCN was affixed to the windscreen of the vehicle at the time of issue'. It stated that as I had failed to respond to the PCN the fine was increased to £100.

    I responded by email with the stock newbie email reply with the added caveat that I had witness evidence that a PCN was never issued to my vehicle. This was Ina addition to challenging the impossible to read sineage.

    MPS sent me a photo of my vehicle parked outside of a bay without a PCN attached. One email later mentioning perverting the course of justice and on 17th January MPS confirmed that the attendant recorded that he failed to issue a PCN as the vehicle left before he was able to do so.

    Despite their admission, I have received a £150 debt recovery letter and now today 25th Jan, I have received a letter from MPS stating that I have to pay £60, appeal to IAS or face court (which I would welcome in the circumstances).

    At no point have I identified the driver and I will not pay.

    The whole situation stinks of exploiting drivers fears for money without PCN's ever being issued.

    MPS are members of BPA and ICO on their website.

    Any advice is appreciated prior to an IAS appeal
    Last edited by Bell-liv; 27-04-2017 at 8:11 PM.
Page 2
    • Bell-liv
    • By Bell-liv 2nd Aug 17, 10:03 PM
    • 14 Posts
    • 3 Thanks
    Evening all, please could you find my draft defence - id appreciate any observations you may have

    Defence Statement

    I am , the defendant in this matter and registered keeper of .

    I deny I am liable for the entirety of the claim as outlined below.

    The defendant has responded promptly to each correspondence from the claimant and their legal representatives and fully complied with the timescales set out by the County Court Claim Form.

    The defendant therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted

    The claimant’s legal representatives letter dated 16th June 2017 quotes Elliot v Loake 1983 Crim LR 36 and also Schedule 4 (4)(1) of the Protection of Freedoms Act 2012 in that the defendant is being ‘pursued as the registered keeper’ of the vehicle. This contradicts the Claimant’s Claim Form which states that ‘the defendant was driving the vehicle and/or is the Keeper of the vehicle. The Claimant does not reasonably identify how the defendant is being pursued, which prevents the defendant compiling a Full Defence
    The defendant was issued a Parking Charge Notice/Notice to Keeper dated 8th December 2016, yet delivered on the 17th December 2016. The PCN/NTK states that a ‘Parking Charge Notice was affixed to the windscreen of the vehicle at the time of issue’ on 08/11/16. The PCN/NTK also states that ‘At the time that the charge was incurred, a Notice to Driver was affixed to the vehicle’.

    The defendant acknowledged they were the registered keeper, yet cannot reasonably be expected to identify who was driving the vehicle on any given date after 38 days. The defendant is not the only regular driver of the vehicle. The defendant highlighted that he had no knowledge of any Parking Charge Notice or Notice to Driver. The defendant highlighted that it could be considered an attempt to pervert the course of justice should the attendant claim to have issued a PCN when they had not. Confirmation that the NTK was received on day 38 is provided in a witness statement.

    The claimant, confirmed by email on 17/01/17 that ‘looking into your parking charge notice, no PCN was affixed to the vehicle due to it having been marked as a drive off’.The claimant therefore acknowledges that they adopted the ANPR method of issuing a parking charge ie taking a photograph and then issuing the charge at a later date. The Claimant failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.

    The admission by the claimant within this email (xxx) renders their one and only Parking Charge Notice/Notice to Keeper, dated 8th December 2016 invalid.

    The POFA permit recovery of private parking charges in limited circumstances as defined by the act and contingent upon whether (a) a parking charge notice (PCN) was affixed to the windscreen of the vehicle or (b) a PCN was issued via post, having obtained details from the Driver Vehicle Licensing Agency (DVLA). The Defendant relies upon POFA Schedule 4 para 9(5) and avers that Notice to Keeper was sent after the statutory period permitted. Accordingly, the Claimant may not rely upon the Act to transfer liability to the keeper

    In the pre-action correspondence dated X the Defendant refers to Elliot v Loake as an authority for establishing a presumption as to the identity of the driver. This is incorrect. Elliot v Loake may be distinguished as a criminal matter in which there was additionally overwhelming forensic evidence. The Court will be provided with recent authorities rejecting the basis for such a presumption. Further it will be noted that had parliament intended to impose a presumption as to the identity of a driver of any vehicle they would have done so - whether in connection with driving matters generally (under the Road Traffic Act 1988) or within the more recent legislation, such as POFA itself. The Court will note that Parliament specifically provided for a more limited liability.

    The defendant has been provided no information as to the identity of the driver, given that if the parking attendant claims this matter was a ‘drive off’, then this would imply some form interaction between the driver and the attendant. The defendant would require the attendant to provide evidence as to the driver’s identity.

    The claimants letter dated 25th January 2017 states ‘…as well as taken statements from the operative(s) (where applicable) who issued the PCN. At no time has this ‘statement’ been provided, nor has the claimant assisted the defendant in identifying the driver.

    The defendant would expect that any evidence as to the driver’s identity would adhere to the provisions within R v Turnbull 1976, 63 Cr App R 132. A copy of R v Turnbull would be provided to the court.

    The complainant and their legal representative are speculative serial litigants, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.

    The defendant is concerned that the claimant instructs Goldstones Solicitors in this case, especially when the defendant has followed the claimant’s own appeals process via the Independent Appeals Service (IAS). The defendant considers it a clear conflict of interest as the IAS and Gladstones Solicitors have been run by the same body, Hurley and Davies. A potential conflict of interest therefore exists between Gladstones Solicitors, the IPC and the IAS. In effect, the claimants solicitors have the potential to exert influence via their formulation of the appeals process.

    This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr. Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a license to park free. None of this applies in this material case.

    In the absence of any proof of adequate signage that contractually bound the Defendant then there can have been no contract and the Claimant has no case.

    The defendant submits three photographs (Court ref xxx), taken after receipt of the NTK, from the perspective of the driver of the vehicle whilst entering the car park, which clearly show that the signage within the car park is physically impossible to view, let alone adhered to the clear signage requirement within the Beavis case.

    Since this matter arose, the car park has implemented further signage within the car park, (Court ref CW/5) which the defendant presents as a clear acknowledgement that the signage at the time of the alleged incident was wholly inadequate.

    The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs.

    Inadequate signs incapable of binding the driver - this distinguishes this case from the Beavis case:

    Sporadic and illegible (charge not prominent nor large lettering) of site/entrance signage - breach of the POFA 2012 Schedule 4 and the BPA Code of Practice and no contract formed to pay any clearly stated sum.

    It is believed the signage and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Consumer Rights Act 2015 in requiring a huge inflated sum as 'compensation' from by an authorised party using the premises as intended.

    The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.

    The charge is an unenforceable penalty based upon a lack of commercial justification. The Beavis case confirmed that the penalty rule is certainly engaged in any case of a private parking charge and was only disengaged due to the unique circumstances of that case, which do not resemble this claim.

    Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant obligation' and relevant contract' fairly and adequately communicated, which there was not as there was no clear, transparent information inside or outside the site) is the sum on the Notice to Keeper. They cannot pluck another sum from thin air and bolt that on as well when neither the signs, nor the NTK, nor the permit information mentioned a possible £242.58 for outstanding debt and damages.

    The Claimant has added unrecoverable sums to the original parking charge. It is believed that the employee who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or even admin) costs' were incurred. I deny the Claimant is entitled to any interest whatsoever.

    The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

    (a) Failed to disclose any cause of action in the incorrectly filed Claim Form issued on 12th June 2017.

    (b) Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation.

    The vague Particulars of Claim disclose no clear cause of action. The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

    I confirm that the above facts and statements are true to the best of my knowledge and recollection.

    • KeithP
    • By KeithP 2nd Aug 17, 10:59 PM
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    The defendant is concerned that the claimant instructs Goldstones Solicitors in this case...
    Originally posted by Bell-liv
    Typo - should read Gladstones.
    • nosferatu1001
    • By nosferatu1001 3rd Aug 17, 5:19 AM
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    OK, that is a bit of a mess.

    You go off on tangents and dont have a coherent set of legal arguments.

    For instance your tirdae is simply:

    1) The claimant claims to rely upon the protection of freedoms act. As no notice was affixed to teh vehicle, Schedulee 4 para 9 requires that a notice to keeper is received within 14 days of the incident. The notice to keeper was dataed after X days and received after 39 days, well outside this timescale. While the NTK misleadingly claims a notice was affixed to the vehicle, the claimant on X date confirmed that there was no notice affixed at the time due to the vehicle driving off. As such the claimant has forfeited any rights to use the provisions of POFA to hold the Keeper liable.
    2) Then EvL as Jonnersh wrote for you...

    and so on.

    NUMBER every paragraph. EVERY para, not just headings.
    Challenging the PoC goes FIRST. Think of this logically - you attack the structure of the claim first, then if that is defeated, you pass to whether the keeper has liability, and so on.

    You also need to add in - locus standii, signage, core price term is hidden, the attack on claimant being correct (You havent shown us the claim form nor confirmed this, so do so) or otherwise (MPS vs MDES) etc.

    As a note, the NtK was not invalid - it just cannot be used to hold the keeper liable. It is as valid as any other speculative invoice.
    • Bell-liv
    • By Bell-liv 3rd Aug 17, 1:34 PM
    • 14 Posts
    • 3 Thanks
    Thanks for the advice - and yes your are correct - on reflection it is a mess. Ill re-draft and re-post.

    Johnersh - the Particulars of Claim read verbatim:

    The driver of the vehicle registration xxx (the 'vehicle') incurred the parking charge(s) on 08/11/2016 for breaching the terms of parking on the land at Fforestfach retail Swansea SA5 4AA
    The defendant was driving the vehicle and/or is the keeper of the vehicle.
    £160 for parking charges/Damages and indemnity costs if applicable, together with interest of £7.58 pursuant to s69 of the County Courts Act 1984 at 8%pa, continuing to judgement at £0.04 per day.

    It is signed by a named legal representative

    * Is it not the case that under POFA they can only attempt to reclaim the original charge, which in this case was £100 according to the NTK and not £160?
    • Johnersh
    • By Johnersh 3rd Aug 17, 6:41 PM
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    Ok - I get a bit angry elf with rubbish statements of case. I don't tolerate it my day job and you shouldn't either.

    You could apply to strike out, but that costs money. As such, I have done a few preliminary points for you. Obviously for the defence itself, there is more than enough material on the forum. The likes of Coupon know POFA better than me! I thought it worth separating out driver and keeper liability into two since both are alleged and in responding in that way, it may help not to get tied up in knots in any subsequent hearing.

    You will no doubt do a lot of cutting and pasting to get this ready. Do make sure you keep your numbering sequential. You can't very well have a beef with their Particulars if you don't make sure that your documents are tidy.


    Preliminary Issues
    1. The Particulars of Claim as prepared by the Claimant are embarrassing, failing to set out the Claimant's case adequately (or at all) in a manner which permits the Defendant to fully understand the case he has to answer.

    2. The Defendant understands the Claimant's case to relate to an unpaid parking charge, yet the Particulars fail to specify whether this is a single charge or multiple and what terms (if any) the Defendant is alleged to be in breach of.

    3. The Claimant is in breach of CPR Part 16 PD 7.3(1) insofar as he has failed to set out the details of any written parking contract that it may be alleged that the Defendant is in breach of and CPR Part 16 PD 7.5, in the event that it is alleged a parking contract was concluded by contract.

    4. Notwithstanding that the Claimant's claim was prepared using the Money Claim OnLine (MCOL) facility, the Court will note that (i) Particulars may be prepared up to 1080 characters in length and (ii) that the Claimant is permitted to serve addendum Particulars by post, if required. The defective statement of case from the Claimant in this matter is a mere 484 characters in length. No or no proper attempt has been made to set out the claim, to the prejudice of the Defendant.

    5. The Defendant reserves the right to amend and/or wholly re-plead his case, if so required. The Defendant avers that to further the overriding objectives of CPR Part 1.1(1) and 1.1(2)(a) the Defendant should be permitted to respond to a fully particularised claim from the Claimant, when available an respectfully requests that these proceedings be stayed in the absence of the same.


    5. At all material times the Defendant admits that he was (and is) the RK of vehicle registration mark XXXXXX

    6. The Defendant's vehicle was parked [add all details relating to location and parking as the claimant never doest this - as they should]

    etc. etc.

    Liability for parking charges
    The Particulars of Claim are prepared in the alternative. The Defendant responds to each basis of claim as set out below.

    (a) Driver Liability
    The Defendant puts the Claimant to strict proof that he was the driver of the vehicle at the time that the parking contravention is alleged.

    To the extent to which the Claimant will rely upon the criminal proceedings in Elliot v Loake to establish driver liability, the Defendant will aver that there is no such presumption in the civil courts or in statute for any driver contraventions or alleged breaches of law. etc.

    (a) Keeper Liability

    [insert usual forum boilerplate defence] etc etc.
    • Johnersh
    • By Johnersh 3rd Aug 17, 7:42 PM
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    Almost forgot
    Under a subheading of 'damages claimed:'
    The Defendant denies any liability to the Claimant for the sums claimed under contract (or at all). The Claimant is put to strict proof.

    Further, it is denied that the CLAIMANT is entitled to claim legal costs in connection with small claims proceedings or within the terms of any parking contract as alleged. The Claimant is required to prove both entitlement to all such costs and the quantification of the same.

    Interest on any damages claimed is at the discretion of the Court. The claim to interest is not admitted.
    Last edited by Johnersh; 05-08-2017 at 5:10 PM. Reason: typo para 2
    • nosferatu1001
    • By nosferatu1001 4th Aug 17, 3:51 AM
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    I love that lead in Absolutely nails them to their claim that they cant provide more details, if theyve only used half the allowed space....
    • Johnersh
    • By Johnersh 4th Aug 17, 6:45 PM
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    Absolutely nails them to their claim that they cant provide more details, if theyve only used half the allowed space....
    It's always been a feeble excuse, but yes: if you cut and paste the exact wording into MS Word and use the character count function, itll tell you just how lazy they are.
    • DollyDee
    • By DollyDee 5th Aug 17, 12:34 PM
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    Almost forgot
    Under a subheading of 'damages claimed:'
    The Defendant denies any liability to the Claimant for the sums claimed under contract (or at all). The Claimant is put to strict proof.

    Further, it is denied that the Defendant is entitled to claim legal costs in connection with small aims proceedings or within the terms of any parking contract as alleged. The Claimant is required to prove both entitlement to all such costs and the quantification of the same.

    Interest on any damages claimed is at the discretion of the Court. The claim to interest is not admitted.
    Originally posted by Johnersh
    Should the second paragraph read Claimant (not Defendant) in the first line of the first sentence and "small claims proceedings" (not small aims proceedings) a bit further on?

    (apologies if I'm mistaken.
    • Johnersh
    • By Johnersh 5th Aug 17, 5:13 PM
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    Nope, you're quite right (now edited). Since my day job exclusively involves bringing claims against defendants, that was an inevitable (if an embarrassingly fundamental) typo that I was going to make at some point...
    • Bell-liv
    • By Bell-liv 6th Aug 17, 8:39 PM
    • 14 Posts
    • 3 Thanks
    Round two:
    Thanks for all the assistance, much cut and pasting later - im again open to any thoughts and advice:
    • Bell-liv
    • By Bell-liv 5th Oct 17, 8:52 PM
    • 14 Posts
    • 3 Thanks
    I've noticed my initial defence did not save when I last posted.
    Following all of your advice, I submitted the defence and have now been allocated to my local court. Glad have now submitted an appalling one and a half page PoC on behalf of mill, clearly a cut and paste effort which pays no regards to the matters I raised in my 40 point defence.

    I now have until 11th to submit my 'further defence thereto' as outlined in the General Form of Judgement or Order.

    Am I to assume this stage is my opportunity to submit a further defence, or the time for me to submit my 'full file' with witness statements and all of my exhibits?
    • Johnersh
    • By Johnersh 6th Oct 17, 11:03 PM
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    Not seen the order, but if Gladstones have amended the particulars of claim, you will have been given permission to serve an amended defence.

    This will be the same document, but splicing in any new additional points/paragraphs (or crossing out new deletions) in red, if possible, or underlined, to ensure they stand out.

    This would be quite distinct from your witness statement or the bundle of documents you are ordered to file for the hearing.
    • Bell-liv
    • By Bell-liv 3rd Dec 17, 8:41 AM
    • 14 Posts
    • 3 Thanks
    Letter of discontinuance received from Gladstones yesterday. At last!
    Thanks for all the assistance. This forum helped no end.
    • nosferatu1001
    • By nosferatu1001 3rd Dec 17, 1:20 PM
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    Has the court got the notice as well?
    Call Monday
    Until you know assume it is live.
    • Bell-liv
    • By Bell-liv 3rd Dec 17, 8:45 PM
    • 14 Posts
    • 3 Thanks
    Good point. I'll check. Almost feel a little cheated from having my day in court after all the effort getting to this stage!
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