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  • FIRST POST
    • SophiaS
    • By SophiaS 4th Jan 18, 8:26 PM
    • 4Posts
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    SophiaS
    Pcn small claim but no defence
    • #1
    • 4th Jan 18, 8:26 PM
    Pcn small claim but no defence 4th Jan 18 at 8:26 PM
    Am I doomed? Have I been stupid for ignoring private parking ticket demand letters? There is a claim form (with particulars of claim listed) sitting on my kitchen table from CCBC (BW Legal for Vehicle Control Services LTD).

    Let me start by saying I'm a newbie, I joined the forum today. I've read the NEWBIES PRIVATE PARKING TICKET thread and instructions have been followed on filling out and completing a MCOL - which has now been submitted - but now I'm well and truly stuck.

    I'm not a legal eagle, I'm barely managing the abbreviations in the threads I've read and I really don't know how to proceed.

    I understand that some kind of defence needs to be put together but what if there really isnt one? Ignorance is no defence is it?

    Here are the particulars. If anyone knows of a way to successfully defend the Small Claim it will be welcomed with open arms.

    [*]Driver "overstayed" in a two hour free parking space at a retail shopping centre in Sheffield. Many retail and food outlets - one large carpark - no clue that there was a time limit in operation. Had never seen this before in this carpark.
    [*]This happened in October 2015. Notice via letter in post.
    [*]Can barely remember the details but car was over by 15 to 30 mins.
    [*]Countless letters were received from Vehicle Control Services all of which were ignored following what now seems really bad advice.
    [*]Letters (and calls) from BW Legal services commenced (and ignored). All letters were originally kept for ages, but then discarded.

    Claim form with Issue date 3rd Jan 18 received today and AOS on MCOL filled & completed. CCBC in Northampton.

    Without the letters or even the clear memory of the parking infraction, how can the driver defend or minimise this claim? Driver should have been more vigilant on signs in or around the car park but wasn't. It was an honest oversight.

    If anyone has any idea how to begin to draft a defence i would be more than grateful.
    Last edited by SophiaS; 04-01-2018 at 9:16 PM.
Page 4
    • SophS
    • By SophS 30th Jan 18, 1:11 AM
    • 42 Posts
    • 38 Thanks
    SophS
    Thank you KeithP. I made the change you suggested and its now emailed. I saved the defence as pdf and inserted a digital (handwritten) signature.
    The pdf was saved as first name + last name + claim no + defence. The subject line was basically same - i.e claim number and "Defence Statement".

    I didn't know if everyone else usually leaves the body of the email blank but I put in a line "Please accept attached signed and dated defence in response to claim number XXXXXX. I look forward to receiving a confirmation email acknowledging receipt.
    Now I wait to see if the BW pay the filing fee and take it further and questionnaire directions come through....I did read somewhere though not to wait but to download it?
    • claxtome
    • By claxtome 31st Jan 18, 8:12 AM
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    claxtome
    Now I wait to see if the BW pay the filing fee and take it further and questionnaire directions come through....I did read somewhere though not to wait but to download it?
    You can download it - the N180 form but wait until the court asks you to fill one out.
    Last edited by claxtome; 01-02-2018 at 4:10 AM.
    • SophS
    • By SophS 16th May 18, 4:04 PM
    • 42 Posts
    • 38 Thanks
    SophS
    A quick update that this is still going on. The wishful thinking that perhaps the PPC would fail to respond to court deadlines, not proceed, not file a fee etc did not happen.

    A date is allocated and I am hashing out a witness statement (and struggling) but reading as many as I can via the link in the sticky for newbies for some direction on how I should compose mine.

    My defence above relied heavily on the NTK & POFA as this was an overstay matter (24 minutes overstay on a 3 hour free term it transpires from the other sides statement) < these details were not previously known from POC...and no recollection of ever receiving an NTK in the first place.

    The said car park in a retail outlet complex is littered with many large signs up on lamposts possibly every 12 yards so it's a hard one to defend in terms of clarity/frequency of signs.

    I am now wondering if the 14 days before hearing includes weekends for the WS. As today is 16th May and hearing is 6th June. If it does not include weekends, then this witness statement needs to be in today (which I hope can be emailed) if it's a straightforward 14 days I still have a few days left.
    • KeithP
    • By KeithP 16th May 18, 4:48 PM
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    KeithP
    Does it say 14 days or 14 working days?

    I know which it says, you need to read it.

    Surely 14 days before 6 June is 23 May - another week away?
    Last edited by KeithP; 17-05-2018 at 11:39 AM.
    .
    • SophS
    • By SophS 17th May 18, 11:34 AM
    • 42 Posts
    • 38 Thanks
    SophS
    Thank you for your response KeithP, and for sticking with this thread, I half thought it would be a dead thread by now.

    The exact wording on the Notice of Allocation court papers says: "It is essential that you provide the Court and your opponent with written statements of evidence....no less than 14 days before the hearing"

    Since many companies and gov departments operate things on working day basis, I didn't want to assume anything as assuming things is how im in this mess to begin with. I will be relieved if it's actually 23rd of May.

    I want to add that I asked advice on a Facebook closed group dedicated to fighting parking tickets...and one person's comment regarding the NTK was "I don't know how you are defending this without the NTK".

    The truth is I don't have it, I have no recollection of one coming through the door (being an alleged incident back in 2015) And no, I did not think to request a copy of one (or that I even could) when the letter of intended court action came through.
    That letter, the claim form and anything from the PPC since then are all the correspondence I currently have following bad advice to "ignore and they'll go away".

    The other side response to my defence statement is a pack that includes photos (photocopies) of the vehicle with clear time and dates stamps showing a period of 3hrs 24 min between them. An overstay of 24min they argue.

    Photos of different sections of the car park which contain signs, copies of the actual signs themselves showing their wording, plus what seems to be a contract between VCS and the landowner dated from 2012. I guess in response to points in my defence.
    No copy of the NTK or other correspondence in their statement.

    They have thrown in latin legalese here and there, go into depth about the contract that the driver agreed to when entering the site, quoted Parking Eye vs Beavis, Office of fair trading vs Abbey National and various code of practices to defend the extent of charges against me.

    I'm sat trying to translate the Latin and look up these case law quotes and I'm a fish out of water.
    • Umkomaas
    • By Umkomaas 17th May 18, 11:40 AM
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    Umkomaas
    I'm sat trying to translate the Latin and look up these case law quotes and I'm a fish out of water.
    Flash it up here, someone will be able to help.
    Please note, we are not a legal, residential or credit advice forum, rather one that helps motorists fight private parking charges, primarily at the 'front-end' of the process.
    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • Johnersh
    • By Johnersh 17th May 18, 1:18 PM
    • 1,183 Posts
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    Johnersh
    Dropbox it. Strictly speaking noone should really use Latin maxims at all. The Woolf reforms were supposed to end that nonsense in c.1998
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • SophS
    • By SophS 17th May 18, 1:38 PM
    • 42 Posts
    • 38 Thanks
    SophS
    Terms like "Inter Alia" I have since googled but using Latin is not helping the current anxiety about all this. It feels like the legally trained are flouting their knowledge and big words about in the face of a layperson to unnerve them or something.

    I do want to highlight a few points in the BWL rebuttal to my defence statement.

    I argued (over several paragraphs) about the POC being inept, void of details and hence no cause for action etc.

    They argued back that due to Practice Direction 7E 5.2 (a) and 5.2A...POC done online are limited to 1080 characters and because of 7.3 of Practice Direction 16, attachments of docs to POC's does not apply to claims started online. - So it appears that they shot down my initial arguments from what i can deduce.

    More importantly though and the argument I am relying on despite me not having the NTK is the Keeper Liability Argument and I would be grateful for any insight on this.

    I've argued that I was not the driver at the time of alleged contravention.

    They argued that as I had not provided them with a name within 28 days of the PCN, they will hold me liable with the "reasonable presumption that the driver of the vehicle had either actual or ostensible authority to enter into a contract with our client in relations to parking on your behalf".

    Is this a permissible argument?

    They supported this by quoting Combined Parking Solutions Ltd vs AJH Films Ltd (2015).

    Having looked this case law up - I don't know if BWL is right. The above case involves employer liability for an employees actions (and according to an article on parking prankster, it's an irrelevant argument. Is it?

    I don't want to rebut this in the Witness statement if they are correct and I end up looking stupid.
    • Castle
    • By Castle 17th May 18, 2:04 PM
    • 2,011 Posts
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    Castle

    They supported this by quoting Combined Parking Solutions Ltd vs AJH Films Ltd (2015).
    Originally posted by SophS
    And "trumped" by Launchbury v Morgans 1972 from the highest court in the land, (at the time):-.
    http://www.bailii.org/uk/cases/UKHL/1972/5.html
    • Johnersh
    • By Johnersh 17th May 18, 2:21 PM
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    Johnersh
    POC done online are limited to 1080 characters
    Correct. But do their PoC actually run to 1080 characters and can they point me to the part of the CPR that permits them to serve inadequate particulars merely because of the computer portal. If more room is required, they can send you a set of separate Particulars. The computer portal allows them to do so.
    because of 7.3 of Practice Direction 16, attachments of docs to POC's does not apply to claims started online
    Correct. However, where you have asked for essential documents pre-action there is no reason for them not to have supplied them.
    as I had not provided them with a name within 28 days of the PCN, they will hold me liable with the "reasonable presumption that the driver of the vehicle had either actual or ostensible authority to enter into a contract with our client in relations to parking on your behalf".
    What a load of B.S.
    1. There is nothing in POFA, criminal or civil law that permits anyone to make a presumption as to the driver
    2. The law only permits liability for the actions of a vehicle driver to attach to the driver (hence the process of declaring the name of a driver). Both then have mechanisms to penalise the keeper for not naming the driver - in this case POFA (if complied with) transfers the liability across.
    3. The Claimant appears to state in their witness evidence an Agency argument (google law of agency) that the driver had authority on behalf of the keeper to enter into contracts. Nothing in law permits that assumption and, in particular, it is not pleaded. This is material variation of the Claimant's case that is both misconceived and impermissible. The Claimant needs to apply to amend their PoC if they wish to advance that argument (I assume they have not), but they should not be permitted to so amend because it has no reasonable prospects of success.
    4. The claimant has no direct contract with the defendant permitting liability to transfer to the keeper in the absence of a driver being identified.
    5. POFA only permits transfer of liability in certain, strictly controlled circumstances.
    6. Combined Parking Solutions Ltd vs AJH Films Ltd (2015) concerned a company relationship with an employee in a company vehicle in the course of his employment. This appears to be rather different. Indeed, one might suggest that referring to that shows a fundamental misunderstanding of that case or, alternatively, the use of a template statement from one court case inappropriately in this one...


    I'd write to the Claimant taking apart their witness statement, which is not a statement of facts at all but seeks to shore up their inadequately pleased case. I would make it clear that you will seek to limit their case to the pleaded particulars should the claim proceed to a final hearing. In any event the arguments raised in the statement are, as set out, unmeritorious.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • Johnersh
    • By Johnersh 17th May 18, 2:24 PM
    • 1,183 Posts
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    Johnersh
    Launchbury

    Still good law. You learn something everyday.

    Case Digest
    Subject: Negligence

    Keywords: Cars; Driving; Vicarious liability

    Summary: Highways; car driven by another for owner's purposes


    In order to fix vicarious liability for the negligence of the driver of a motor-car on the owner of the vehicle, it must be shown that the driver was using it for the owner's purposes under delegation of a task or duty. When H and W married they each owned a car, but H sold his car and thereafter the family owned only one car, which was changed from time to time but always registered in W's name. It was treated as a family car and was used mainly by H who worked seven miles from the matrimonial home. Occasionally H had a drink on the way home, and W had asked him not to drive the car himself if he was not sober. On one occasion H had a great deal to drink, and asked C to drive him home. There were three passengers in the car together with H when a collision occurred through the negligent driving of C. H and C were killed. The passengers sued W as owner of the car, claiming that she was vicariously liable for the negligent driving of C.

    Held, that to fix vicarious liability on the owner in such a case, it must be shown that the driver was using the car for the owner's purposes under delegation of a task or duty, and on the facts, that was impossible to hold
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • SophS
    • By SophS 17th May 18, 7:07 PM
    • 42 Posts
    • 38 Thanks
    SophS
    Thank you Jonersh and Castle, I'm beavering away looking all this up to try to get my head around vicarious liability angle..and both quoted case law above.... so that I can incorporate a response to their argument in my WS.

    As mentioned above, BWL response to my defence statement was to send a pack that included photos of my vehicle, of signs etc and rebuttals to my arguments and a copy of contact between VCS and the landowner.

    The latter is dated May 2012 and in very small print says "VCS will provide a parking control service at the Car Park for a fixed period of 3 months from the 28th day of May 2012"

    The alleged contravention happened in October 2015, why would BWL not include a more recent copy of the contract that covers the actual period of the contravention to prove that their "Client (VCS) is engaged by the landowner of the carpark to manage and enforce the parking conditions in situ...."

    I don't know much but even I know that contracts must be in date to be 1 enforceable and 2 admissible in court. Am I barking up the wrong tree here?

    It could be that they sent the wrong copy of the contract and that there is a more up to date one at hand but reading the above, it reads as though VCS contract to manage the car park expired in Aug 2012.
    It even makes several references to VCS being a member of the BPA when they moved to IPC in September 2014.

    I don't know if the pack i received was a WS but it's not headed up as such...so I don't know if it is the same things as the court would have received and if so...are they allowed to change or add to their submitted evidence?

    I wouldn't mind bringing it to the judge's attention that BWL is banging on about breach of contract when they potentially don't have the right to even operate on the land.
    • Castle
    • By Castle 17th May 18, 7:12 PM
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    Castle
    Are the photos of the signs date stamped?
    • SophS
    • By SophS 17th May 18, 7:19 PM
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    SophS
    Yes in red as you get on a camera and says Feb. 23. 2015 so 8 months before the alleged contravention.
    • Johnersh
    • By Johnersh 17th May 18, 7:39 PM
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    Johnersh
    Scan or photograph the statement with your personal details and the court details redacted. it's much easier to review then.

    You need a hosting site. Dropbox is your friend.

    You may need to change the http:/ part of the weblink to hxxp so as to be able to post the web address on here.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • SophS
    • By SophS 17th May 18, 8:42 PM
    • 42 Posts
    • 38 Thanks
    SophS
    I've not tried sharing a link before so I hope it worked. It contains two docs, one is a copy of my defence (also above in post 57) the other is the statement pack from BWL.

    Is this what you meant when you said scan the statement Jonersh?

    Also please ignore all the highlighted parts and my scribble in the borders - that's just me making notes to address in the WS.
    try either link
    https://www.dropbox.com/sh/s9nlwz2iumtsfuj/AADLm044IZ8q52xKGkET9VXca?dl=0

    hxxps://www.dropbox.com/sh/s9nlwz2iumtsfuj/AADLm044IZ8q52xKGkET9VXca?dl=0[/URL]
    Last edited by SophS; 17-05-2018 at 8:45 PM.
    • Johnersh
    • By Johnersh 17th May 18, 10:34 PM
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    Johnersh
    Great, that works. A redacted copy of the particulars would be great - just to see it is the usual 1 sentence guff.

    I'd genuinely write back and make clear that your defence responds to the particulars. Their recent correspondence addresses issues that firm no part of their pleaded case and you will invite the court to debar them from relying on them.

    It is a farrago of pasted together cases - in parts a direct response to the defence and in others stating what will happen if proceedings are issued: WTF?

    The sign on entry is decent - perhaps you should notice it. The other one is 900m up in the sky (so possibly not).

    Even if you go down on the ticket, I reckon you should be able to attack the charges. It'll be on them to prove the costs incurred.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • Johnersh
    • By Johnersh 17th May 18, 11:20 PM
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    Johnersh
    Looking at the document pack:

    1. Their photos are quite useful to show that terms relating to their additional charges simply are unreadable.

    2. Arguably VCS are in breach of the 2012 contract (that ain't a permit sign) and ANPR is a material change not merely other terms, which requires notice in writing.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • SophS
    • By SophS 18th May 18, 11:21 AM
    • 42 Posts
    • 38 Thanks
    SophS
    Oki Doki, I've uploaded Particulars of Claim (redacted) to the same dropbox link.

    Maybe the details weren't as brief as I originally thought. I counted that there were at least 775 characters including spaces! So while not 1080 and no other attachments, it's not exactly one sentence.

    I am going to hash out a draft for the WS and will include all the points you and Castle mentioned above.

    I admit I don't exactly know what you mean in some of your points so please bear with me if I ask for clarification, I'll try not to be a drain on anyone's time but its a bit like learning to write Japanese with my left hand.
    Can we start with this one below?

    2. Arguably VCS are in breach of the 2012 contract (that ain't a permit sign) and ANPR is a material change not merely other terms, which requires notice in writing.
    • Coupon-mad
    • By Coupon-mad 18th May 18, 5:34 PM
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    Coupon-mad
    I take that to mean, the 2012 contract allows them to operate a permit scheme.

    Instead, they are operating a completely different scheme and using ANPR (and they won't have complied with the ICO COP on surveillance camera ANPR use).
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT UNLESS IN SCOTLAND OR NI
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