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  • FIRST POST
    • Capt Mainwaring
    • By Capt Mainwaring 1st Jan 18, 9:10 PM
    • 59Posts
    • 25Thanks
    Capt Mainwaring
    Help and guidance please
    • #1
    • 1st Jan 18, 9:10 PM
    Help and guidance please 1st Jan 18 at 9:10 PM
    Hi

    This is my first post. I've read through some of the stickies and I've got to admit, my head is spinning a little. I could really do with some help and guidance, as I'm not sure where to go from here. I feel sick as I type this and I just want the whole miserable saga to end quickly.

    Two PCNs have been issued by a well known car parking firm. An appeal was done via their website to address the first one (this was perhaps naïve but was done without any prior internet research). Unsurprisingly, they were not interested in the rationale. When the appeal didn't work, I then began to consult the various forums dedicated to this subject. Most of the comments I read were unequivocal, in that any further correspondence from the company or any follow up letters from a Solicitor should be ignored. This advice has been duly followed.

    The latest letter is headed - Notice of Pending County Court Claim - I've been fairly bullish to this point, as I don't believe any money is owed to this company (their machines were out of order on both occasions). However, I'm now at a point of what do I do next? Do I continue to ignore the letters and potentially receive a court summons? Should I write them a 'cease and desist' letter, as per the various examples I've seen. Perhaps I should have written to the Retailer that I visited on both occasions, although given the amount of time that has elapsed, I'm not sure if they can help...

    Please can you help, as this is seriously getting me down. Thank you.
Page 3
    • Capt Mainwaring
    • By Capt Mainwaring 19th Jan 18, 1:48 PM
    • 59 Posts
    • 25 Thanks
    Capt Mainwaring
    Hello again.

    I've taken today off work to try and draft up the defence letters (I'd rather not but feel it's the only way I can find the time to do this). I don't know if this is relevant (I hope it is) but I've noticed on the first PCN that the issue date is 18 days AFTER the contravention date. Unless I'm wrong, don't PPCs have 14 days to bring this to the Keeper's attention? This is the PCN where the driver's identity was revealed in an appeal.
    • nosferatu1001
    • By nosferatu1001 19th Jan 18, 3:36 PM
    • 2,765 Posts
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    nosferatu1001
    14 days is only relevant for para 9 of POFA2012, which is only important to holding the keeper liable

    If the driver has been revealed, and is the defendant, then this is of course no help.
    • Capt Mainwaring
    • By Capt Mainwaring 31st Jan 18, 12:07 PM
    • 59 Posts
    • 25 Thanks
    Capt Mainwaring
    Hi

    First draft letter for the defence of the PCN where the driver's identity has been confirmed to the PPC.

    It is admitted that the Defendant was the driver of the vehicle in question.
    However the Claimant has no cause of action against the Defendant on the following grounds:-

    1. 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 licence to park free. None of this applies in this material case.

    2. The signage on and around the site did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days.

    The signage is inadequate in terms of the following:

    • Lack of clarity and prominence of terms and conditions
    • Illegible text due to font size, density, colour and complexity
    • Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
    • Lack of relevant terms and conditions, such as the fees for parking
    • Inadequate positioning of signs, at unsuitable heights

    3. As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, it cannot be assumed that anyone entering the car park was immediately aware of, and agreed, the terms and conditions. The Claimant is put to strict proof that the Defendant saw, read and agreed the terms upon which the claimant is relying on the day in question.


    4. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to Excel Parking Services Ltd.

    a) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

    5. No sum payable to this Claimant was accepted nor even known about by the driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

    6. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-

    a) The Claimant has no commercial justification
    b) The Claimant did not follow the IPC or BPA Code of Practice
    c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
    d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
    e) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

    7. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimant claims a sum of £164.36 as the ‘amount claimed’’ (for which liability is denied) plus the Particulars of Claim include £60 that the claimant has presented as contractual costs pursuant to PCN terms and conditions. In contradiction to this the claimant's solicitor has, however, described the Principal Debt as £100 and solicitor's costs as a further £110 in correspondence with the keeper summarised within the letter titled ‘Notice of county court claim issued’. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representative’s costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

    8. If the driver on the date of the event was considered to be a trespasser 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.

    9. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

    Therefore I ask the court to respectfully strike out this claim with immediate effect.
    I believe that the facts stated in this Statement of defence are true."
    • Capt Mainwaring
    • By Capt Mainwaring 31st Jan 18, 12:11 PM
    • 59 Posts
    • 25 Thanks
    Capt Mainwaring
    This is my second draft defence letter where the driver's identity has not been admitted


    It is admitted that Defendant is the registered keeper of the vehicle in question.
    However the Claimant has no cause of action against the Defendant on the following grounds:-

    1. The registered keeper has not been proven as the driver, as such the keeper can only be held liable if the claimant has fully complied with the strict requirements.

    2. 1. The Protection of Freedom Act 2012 Schedule 4 has not being complied with.

    a) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under PoFA, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.

    b) The keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time and with mandatory wording.

    c) The claimant has no right to assert that the defendant is liable based on ‘reasonable assumption’. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).

    3. 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 licence to park free. None of this applies in this material case.

    4. The signage on and around the site did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. The claimant was also formerly a member of the BPA, whose requirements they also did not follow. Therefore no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days.

    The signage is inadequate in terms of the following:

    • Lack of clarity and prominence of terms and conditions
    • Illegible text due to font size, density, colour and complexity
    • Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
    • Lack of relevant terms and conditions, such as the fees for parking
    • Inadequate positioning of signs, at unsuitable heights

    5. As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, it cannot be assumed that anyone entering the car park was immediately aware of, and agreed, the terms and conditions. The Claimant is put to strict proof that the Defendant saw, read and agreed the terms upon which the claimant is relying on the day in question.

    6. No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle entering and exiting the car park does not constitute a proven contravention of the parking conditions. No ticket was placed on the vehicle and the Claimant has failed to provide any evidence that a valid ticket was not on display.

    7. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to Excel Parking Services Ltd.

    a) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.


    8. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

    9 . The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-

    a) The Claimant has no commercial justification
    b) The Claimant did not follow the IPC or BPA Code of Practice
    c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
    d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
    e) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

    10. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimant claims a sum of £163.94 as the ‘amount claimed’’ (for which liability is denied) plus the Particulars of Claim include £60 that the claimant has presented as contractual costs pursuant to PCN terms and conditions. In contradiction to this the claimant's solicitor has, however, described the Principal Debt as £100 and solicitor's costs as a further £110 in correspondence with the keeper summarised within the letter titled ‘Notice of county court claim issued’. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representative’s costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

    11. If the driver on the date of the event was considered to be a trespasser 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.

    12. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

    Therefore I ask the court to respectfully strike out this claim with immediate effect.
    I believe that the facts stated in this Statement of defence are true."

    • Capt Mainwaring
    • By Capt Mainwaring 31st Jan 18, 12:15 PM
    • 59 Posts
    • 25 Thanks
    Capt Mainwaring
    Hi


    I've has an ABSOLUTE NIGHTMARE in the last 10 days or so. The forum administrator took a dislike to my IP Address and I've not been able to post anything since.


    I received the papers from Northampton County Court on 5/1 (dated 4/1, from memory). I've acknowledged them but my four weeks is now rapidly running out!


    PLEASE can someone review the above letters and confirm any changes as I need to submit my defence ASAP. Thanks.
    • Capt Mainwaring
    • By Capt Mainwaring 1st Feb 18, 12:33 PM
    • 59 Posts
    • 25 Thanks
    Capt Mainwaring
    Hi


    I still can't sign in to or indeed read this forum at home! I can only add updates via work (although this has only started working since yesterday). The deadline for me to submit my defence is fast approaching...


    I can't 'bump' this up the order at home, so I'll try again before I leave work at 5.00pm. PLEASE can someone let me know if my letters are any good, as after 5.00pm tomorrow, the only chance I'll have is to go to an internet caf! or library and as I have a busy home life, I can't guarantee that I can do that.


    Thanks
    • Capt Mainwaring
    • By Capt Mainwaring 1st Feb 18, 5:07 PM
    • 59 Posts
    • 25 Thanks
    Capt Mainwaring
    Just bumping this up in the hope that someone can come back to me tonight, as I won't be able to view this forum when I get home.
    • KeithP
    • By KeithP 1st Feb 18, 5:20 PM
    • 7,720 Posts
    • 7,467 Thanks
    KeithP
    When you get home turn off your router for a few minutes.

    Hopefully when you turn it back on it will pick up a new IP address which will allow you access again.

    You problem was caused by copying and pasting directly from MS Word to the forum.

    To avoid it in future, copy via notepad to avoid all the Word formatting characters being transferred.
    .
    • Lamilad
    • By Lamilad 1st Feb 18, 6:00 PM
    • 1,353 Posts
    • 2,712 Thanks
    Lamilad
    Or use a free VPN browser like "Hola"
    • Capt Mainwaring
    • By Capt Mainwaring 2nd Feb 18, 12:49 PM
    • 59 Posts
    • 25 Thanks
    Capt Mainwaring
    Hi Keith and Lamilad.


    Thanks for the advice. I'll try it when I get home, as I need to post my defence this weekend.


    Lamilad - have you any advice regarding the above letters I posted on Wednesday?
    • Coupon-mad
    • By Coupon-mad 3rd Feb 18, 1:03 AM
    • 58,549 Posts
    • 72,051 Thanks
    Coupon-mad
    Bumping this from page 3 so Lamilad can see it.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Capt Mainwaring
    • By Capt Mainwaring 3rd Feb 18, 12:03 PM
    • 59 Posts
    • 25 Thanks
    Capt Mainwaring
    Hi

    Thanks CM.

    Please can someone review my letters, as I need to post my defence TOMORROW.

    Thanks.
    • Lamilad
    • By Lamilad 3rd Feb 18, 1:20 PM
    • 1,353 Posts
    • 2,712 Thanks
    Lamilad
    I'll have a proper look tomorrow, won't have time today.
    • Capt Mainwaring
    • By Capt Mainwaring 3rd Feb 18, 1:48 PM
    • 59 Posts
    • 25 Thanks
    Capt Mainwaring
    Thanks Lamilad.

    Fortunately, I've now got access to this forum at home.

    I'd really appreciate your guidance on both letters (especially the first one).
    • KeithP
    • By KeithP 3rd Feb 18, 2:31 PM
    • 7,720 Posts
    • 7,467 Thanks
    KeithP
    Please can someone review my letters, as I need to post my defence TOMORROW.
    Originally posted by Capt Mainwaring
    Why are you rushing to post your defence?

    Re-read posts #35, #36 and #39.

    Give yourself another couple of days and email it to: ccbcaq@hmcts.gsi.gov.uk
    Last edited by KeithP; 03-02-2018 at 2:38 PM.
    .
    • The Deep
    • By The Deep 3rd Feb 18, 4:48 PM
    • 9,514 Posts
    • 9,287 Thanks
    The Deep
    Have you read this?

    https://www.theyworkforyou.com/debates/?id=2018-02-02a.1149.0&p=11026

    Complain to your MP now.. The more complaints they get, the sooner these parasites will go to the wall.
    You never know how far you can go until you go too far.
    • Lamilad
    • By Lamilad 4th Feb 18, 10:32 PM
    • 1,353 Posts
    • 2,712 Thanks
    Lamilad
    First defence.

    I would remove the stuff about Beavis as it will better serve you in your WS/SA further down the line. I doubt they referenced it in the PoC so it's not really relevant at this stage. Keep point #6 but remove sub paras a, c, d.

    Where you mention they haven't followed the CoP, add that the Supreme court judges, in the Beavis case found that the CoP is "effectively binding regulation" on parking operaters.

    You haven't attacked the PoC which, in Excel's case are always woeful and inadequate. Read some recent CEL defences which will contain paragraphs and wording you can use. Also the Johnersh defence linked in the newbies thread -this also attacks PoFA which can be used in your second defence.

    CEL and Excel defences are very similar so you can use a lot of the wording. I seem to recall a poster called 'Ixworth' had a pretty good defence.

    Also read this comment by CM:
    http://forums.moneysavingexpert.com/showthread.php?t=5775276#17
    Last edited by Lamilad; 04-02-2018 at 10:50 PM.
    • Capt Mainwaring
    • By Capt Mainwaring 5th Feb 18, 8:19 PM
    • 59 Posts
    • 25 Thanks
    Capt Mainwaring
    Thanks Lamilad.

    My 33 days are up tomorrow, so I need to act quickly. I've tried to incorporate your points in to the second draft of my letter. I hope it's ok. It's not easy doing this when my wife is out and I'm looking after three young kids!

    It is admitted that the Defendant was the driver of the vehicle in question.
    However the Claimant has no cause of action against the Defendant on the following grounds:-

    1. The signage on and around the site did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. In ParkingEye v Beavis, Supreme Court judges found that the Code of Practice is "effectively binding regulation" on parking operators. The Claimant was a member of the IPC at the time and committed to follow its requirements. Therefore no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days.
    The signage is inadequate in terms of the following:
    !!!8226; Lack of clarity and prominence of terms and conditions
    !!!8226; Illegible text due to font size, density, colour and complexity
    !!!8226; Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
    !!!8226; Lack of relevant terms and conditions, such as the fees for parking
    !!!8226; Inadequate positioning of signs, at unsuitable heights

    2. As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, it cannot be assumed that anyone entering the car park was immediately aware of, and agreed, the terms and conditions. The Claimant is put to strict proof that the Defendant saw, read and agreed the terms upon which the claimant is relying on the day in question.

    3. This Claimant has not complied with pre-court protocol. And as an example as to why this prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged contract has never been provided to the Defendant.

    a) This is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little information.
    b) The Schedule of information is sparse of detailed information.
    c) The Claim form Particulars were extremely sparse and divulged no cause of action nor sufficient detail. The Defendant has no idea what the claim is about - why the charge arose, what the alleged contract was; nothing that could be considered a fair exchange of information. The Claim form Particulars did not contain any evidence of contravention or photographs.
    d) The claimant failed to include a copy of the "contract" as required when seperate Particulars of Claim are served.
    e) The Defence therefore asks the Court to strike out the claim as having no reasonable prospect of success as currently drafted.

    4. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to Excel Parking Services Ltd.
    a) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

    5. No sum payable to this Claimant was accepted nor even known about by the driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

    6. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-

    a) The Claimant did not follow the IPC or BPA Code of Practice
    b) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

    7. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimant claims a sum of £164.36 as the !!!8216;amount claimed!!!8217;!!!8217; (for which liability is denied) plus the Particulars of Claim include £60 that the claimant has presented as contractual costs pursuant to PCN terms and conditions. In contradiction to this the claimant's solicitor has, however, described the Principal Debt as £100 and solicitor's costs as a further £110 in correspondence with the keeper summarised within the letter titled !!!8216;Notice of county court claim issued!!!8217;. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representative!!!8217;s costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

    8. If the driver on the date of the event was considered to be a trespasser 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.

    9. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

    Therefore I ask the court to respectfully strike out this claim with immediate effect.
    I believe that the facts stated in this Statement of defence are true.
    • Capt Mainwaring
    • By Capt Mainwaring 5th Feb 18, 8:33 PM
    • 59 Posts
    • 25 Thanks
    Capt Mainwaring
    I take it this is the correct email address - ccbcaq@hmcts.gsi.gov.uk
    • KeithP
    • By KeithP 5th Feb 18, 8:40 PM
    • 7,720 Posts
    • 7,467 Thanks
    KeithP
    I take it this is the correct email address - ccbcaq@hmcts.gsi.gov.uk
    Originally posted by Capt Mainwaring
    Yes it is.
    .
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