Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • akman786
    • By akman786 9th Jul 18, 3:48 AM
    • 8Posts
    • 1Thanks
    akman786
    Need help with ws for county court claim!
    • #1
    • 9th Jul 18, 3:48 AM
    Need help with ws for county court claim! 9th Jul 18 at 3:48 AM
    Hi Everyone!!

    Please see below brief details of the case to date.

    In August 2017 my aunt and I had gone to visit a family friend who lived in a private apartment complex. She was the driver and is registered keeper of the vehicle. It was late at night (i.e. 10pm) and the family friend assured us that it would be fine to park our car in the private car park for the flats. When we returned to the car we noticed a parking charge notice stuck to the screen. My aunt was really disappointed as we could have easily parked on the street for free.

    I had once previously written to a private parking company on a 'without prejudice' basis and had offered to settle the PCN for £10. As it had worked before I thought it would work again. So I told my aunt that I'll write to them and offer to settle the PCN on her behalf. I did so but the parking company did not accept the offer and wrote back to me stating that my appeal was unsuccessful. So then I let it be. I then received a notice from them in September 2017 which I ignored. After which I received a Letter Before Claim from Gladstones Solicitors in November 2017.

    I responded to the LBC stating that the alleged debt is disputed and any court proceedings will be vigorously defended. I also brought to their notice that their LBC was defective and did not comply with Para 3 of the Pre-Action Protocol for Debt Claims under the Civil Procedure Rules 1998. I asked them to send me a compliant LBC.

    I did not receive a reply to my letter so in December 2017 - I decided to respond to their LBC online by stating that I disputed the debt as I did not want to be out of time of the 30 day reply period.

    I did not receive any further correspondence from Gladstones. I then received a County Court Claim Form in March 2018. I acknowledged service and then filed a defence within the time period. I then received a Notice of Proposed Allocation to the Small Claims Track at the beginning of April 2018. I then filed form N180 DQ within the time limit. I then received a Notice of Transfer of Proceedings at the end of April 2018.

    Finally, I received a Notice of Allocation to the Small Claims Track (Hearings) in May 2018. No date for the hearing was fixed or specified in the document. However, it did state that - "each party shall deliver to every other party and to the court office copies of all documents on which he intends to rely at the hearing within 21 days of the service of this order". As I was flying abroad the next day I was not able to send any documents to the court or the claimant. I have only returned back to the UK yesterday.

    I have received a witness statement from the Claimant along with Exhibits. I still have not received any further correspondence from the court regarding the date of the hearing.

    MY QUESTIONS:

    1) Am I out of time to file a Witness Statement and other evidence? or will I have time until 14 days before the hearing date when it's fixed?

    2) It appears that the Claimant is also out of time in filing their Witness Statment - the date of the letter from the court was 23 May 2018 and the letter enclosing the claimant's witness statements which I received is dated 20 June 2018. If we add 2 business days for deemed service and then add 21 days then the date by which the Claimant should have served their WS should have been 18th June 2018. Is that correct?

    3) What should be my plan of action going forward? Should I serve my WS and documents regardless as the date of hearing as not yet been fixed? If so, can someone help me with drafting one? My main argument is that I was neither the driver or the registered keeper of the vehicle so that claim is against the wrong defendant.

    I am unable to attach all the relevant documents and correspondence for reference. I would greatly appreciate if someone can advise me on what I should do in the current circumstances.

    Thanks in advance.
Page 1
    • akman786
    • By akman786 9th Jul 18, 3:49 AM
    • 8 Posts
    • 1 Thanks
    akman786
    • #2
    • 9th Jul 18, 3:49 AM
    My Defence
    • #2
    • 9th Jul 18, 3:49 AM
    Please see below the Defence that I had submitted:

    1. The Defendant denies any liability whatsoever to the Claimant.

    2. The Defendant denies being the driver and/or registered keeper of the vehicle at the time of the incident. The Defendant is not therefore liable for the claim and invites the court to give summary judgment pursuant to CPR Rule 24.2 against the Claimant as having no real prospect of success and there being no other compelling reason why the case should be disposed of at trial.

    3. Notwithstanding paragraph 2 above, if the Claimant is intending to pursue this claim against the Defendant on the basis that the Defendant is the registered keeper then the Claimant has failed to show that the conditions for recovering this charge under Schedule 4 of the Protection of Freedoms Act 2012 have been met. The Defendant disputes that any of the conditions necessary for a claim to be pursued against the keeper of the vehicle have been met.

    4.a) Notwithstanding paragraph 3 above, no evidence has been provided to show a valid Notice to Driver was given to the driver in accordance with Paragraph 7, Schedule 4 of the Protection of Freedoms Act 2012.

    5. It is believed that the Claimant has no standing to bring this claim. The Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to the Claimant. Thus, the Defendant disputes that the Claimant has the authority to issue parking charges on the land in their own name and that they have any locus standi to bring this case.

    6. If the driver on the date of the event was considered to be a trespasser, and not allowed to park on the land, then only the landowner can pursue a case under the tort of trespass, not the Claimant, and as the Supreme Court in the ParkingEye Ltd v Beavis [2015] UKSC 67 has stated, such a matter would be limited to the landowner themselves claiming for a nominal sum.

    7. The Claimant might argue that the Supreme Court’s decision in Parking Eye v. Beavis is applicable. The Defendant will argue that the present case meets none of the conditions that the Supreme Court stated were required for a parking notice to be exempt from the well-established principle that penalty charges cannot be recovered. The main difference is that the Supreme Court determined that, in a retail park, there was a public interest in ensuring a turnover of visitors that justified a disincentive to overstay. There is clearly no such interest in a third party such as the Claimant in this case in attempting to impose conditions in a residential car park where there is no turnover of visitors and the vehicle was not parked in pay-and-display car parking.

    8. The Defendant also disputes that the Claimant has incurred £50 solicitor cost and interest. The Particulars of Claim are spectacularly deficient and woefully inadequate to show a cause of action.

    9. The Claimant has not complied with CPR Rule 16.4. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The Defendant therefore asks that the court strike out the Particulars of Claim pursuant to CPR Rule 3.4(2)(a).

    10. Finally the Claimant's Letter Before Claim dated 13th November 2017 did not fully comply with the Pre-Action Protocol for Debt Claims. The Defendant responded to the Letter Before Claim on 08 December 2017. However, the Claimant did not give the Defendant at least 14 days' notice of their intention to start court proceedings pursuant to paragraph 8.2 of the said Pre-Action Protocol and issued proceedings without notice.
    • Coupon-mad
    • By Coupon-mad 10th Jul 18, 1:13 AM
    • 61,458 Posts
    • 74,346 Thanks
    Coupon-mad
    • #3
    • 10th Jul 18, 1:13 AM
    • #3
    • 10th Jul 18, 1:13 AM
    1) Am I out of time to file a Witness Statement and other evidence? or will I have time until 14 days before the hearing date when it's fixed?
    Just do it now, tomorrow, and attach proof you were out of the country from xx date to xx date. It is urgent that you get this to the Claimant and Court, now.

    2) It appears that the Claimant is also out of time in filing their Witness Statment - the date of the letter from the court was 23 May 2018 and the letter enclosing the claimant's witness statements which I received is dated 20 June 2018. If we add 2 business days for deemed service and then add 21 days then the date by which the Claimant should have served their WS should have been 18th June 2018. Is that correct?
    Well it's correct they are late, yes, but you are later so crack on, get this filed in the morning with your evidence.

    3) ... My main argument is that I was neither the driver or the registered keeper of the vehicle so that claim is against the wrong defendant.
    Yes, but you should have told them that at LBC stage.

    This might be better:
    on the erroneous assumption that the Defendant is the registered keeper
    And I am not sure you need the usual stuff 'notwithstanding'. What you do need is evidence but not sure what, because the last thing you want to do is name your Aunt!

    Needs some thinking about and not at this time of night! See what others say in the morning.
    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.

    • akman786
    • By akman786 10th Jul 18, 4:41 PM
    • 8 Posts
    • 1 Thanks
    akman786
    • #4
    • 10th Jul 18, 4:41 PM
    • #4
    • 10th Jul 18, 4:41 PM
    Thanks for your response Coupon-mad.

    This is the argument that I am thinking of putting forward:

    They slapped a ticket on the screen. I had written a letter to them on a 'without prejudice' basis trying to negotiate a settlement on behalf of my aunt. I was under no obligation to mention who the driver was or ever suggested that I was the keeper of the vehicle. So they have just assumed I was the keeper and sent me a NTK.

    They wrote in the NTK that 'We have received your details following a transfer of liability naming you as a keeper of the vehicle'. This statement is incorrect - they have made an assumption on the basis of my letter sent to them that I was the keeper and that I have admitted to the transfer of liability from the driver to myself. Can I challenge this with the judge in court? And ask the claimant to show evidence which proves that such transfer of liability actually took place.

    Furthermore, please see points 7 and 8 of the Claimant's WS (I am unable to post links as I am a new user - otherwise I would be happy to share all the relevant documents with you)

    In point 7 - the claimant states that the notice was sent to the Defendant in accordance of with the POFA. If this statement is correct then the Claimant should have relied on para 11 of Schd 4 POFA and got the details of the registered keeper from the DVLA and sent the NTK to them. If they had got the information from the DVLA then they would have sent the NTK to my aunt instead of me.

    In point 8 - the Claimant claims that the Defendant appealed the charge and provided an address for service and response to the appeal. My letter was not an appeal it was an offer to settle. Can the Claimant argue this point - that I have assumed liability on behalf of the driver and/or keeper based on the contents of my letter and not telling them that I was not the driver or the keeper of the vehicle? Also, would I be able to persuade the court that the letter should not be admitted as evidence as it was 'without prejudice' correspondence and cannot be used to prove liability?

    Will really appreciate your thoughts.
    • akman786
    • By akman786 10th Jul 18, 4:45 PM
    • 8 Posts
    • 1 Thanks
    akman786
    • #5
    • 10th Jul 18, 4:45 PM
    • #5
    • 10th Jul 18, 4:45 PM
    I was thinking of attaching a copy of the V5 form to prove that I was not the registered keeper of the vehicle. But you suggest that I don't name the Aunt. Even if they now find out details of the registered keeper they would be out of time to serve a new NTK?



    And I am not sure you need the usual stuff 'notwithstanding'. What you do need is evidence but not sure what, because the last thing you want to do is name your Aunt!

    Needs some thinking about and not at this time of night! See what others say in the morning.
    Originally posted by Coupon-mad
    • Coupon-mad
    • By Coupon-mad 10th Jul 18, 6:44 PM
    • 61,458 Posts
    • 74,346 Thanks
    Coupon-mad
    • #6
    • 10th Jul 18, 6:44 PM
    • #6
    • 10th Jul 18, 6:44 PM
    Actually, thinking about it, naming her is fine, but NOT showing her address. You can't put her at risk of them dropping you, then suing her.
    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.

    • akman786
    • By akman786 10th Jul 18, 8:10 PM
    • 8 Posts
    • 1 Thanks
    akman786
    • #7
    • 10th Jul 18, 8:10 PM
    • #7
    • 10th Jul 18, 8:10 PM
    But if I attach a copy of the V5 form it will reveal her address.

    I'm in the process of drafting my witness statement. I will post it here. Your feedback will be greatly appreciated.
    • Coupon-mad
    • By Coupon-mad 10th Jul 18, 10:06 PM
    • 61,458 Posts
    • 74,346 Thanks
    Coupon-mad
    • #8
    • 10th Jul 18, 10:06 PM
    • #8
    • 10th Jul 18, 10:06 PM
    Put in a redacted copy, and explain that for data protection reasons and because you have no intention of 'transferring liability' to your Aunt which might give the green light to these aggressive thugs to pursue her instead, her address is covered but all other details are shown to prove you were not the rk at the material time and never have been the rk of this car.
    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.

    • akman786
    • By akman786 11th Jul 18, 3:01 AM
    • 8 Posts
    • 1 Thanks
    akman786
    • #9
    • 11th Jul 18, 3:01 AM
    • #9
    • 11th Jul 18, 3:01 AM
    Thanks for the tip Coupon-mad. Please see below draft of my WS. Please let me know if I'm missing any major points!!

    I, xxxxx , of xxxxx will say as follows:

    1) I am in the Defendant in this case.

    2)The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief.

    3) It is denied that I was either the ‘driver’ or ‘keeper’ or ‘registered keeper’ as defined under Schedule 4, Protection of Freedoms Act 2012 (the ‘Act’) of the vehicle with registration number xxxxx at the material time when the breach of parking conditions as alleged by the Claimant occurred.

    4) The Claimant has no evidence to support its claim that I was either the driver and/or keeper/registered keeper of the vehicle and has failed to provide any substantial facts in its Letter Before Claim and Particulars of Claim.

    Presumption of being the Keeper/Registered Keeper

    5) Exhibited to this witness statement at “xx" is a redacted copy of the V5C UK Registration Certificate for the vehicle which shows the Keeper/Registered Keeper is xxx since [DATE]. The personal details have been redacted for data protection reasons.

    6) I had written a letter dated 16 August 2017 to the Claimant on a ‘without prejudice’ basis at the request of the Keeper/Registered Keeper in a genuine attempt to settle the disputed parking charge.

    7) The Claimant subsequently refused to accept the offer to settle after which no further communication was initiated by me.

    8) In my letter there was no indication that I was the Keeper/Registered Keeper of the vehicle. Therefore, the Claimant has erroneously presumed that I was the Keeper/Registered Keeper of the vehicle at the material time.

    9)I further submit that the court applies the Without Prejudice Rule and prevents the letter to be admitted as evidence in the case. In!Rush & Tompkins Ltd v Greater London Council and others [1988] UKHL 7, Lord Griffiths stated that: "the contents of the without prejudice correspondence ... will not be admissible to establish!any admission!(emphasis added) relating to the [party's] claim."

    Keeper Liability

    10) Using the address details from my letter the Claimant then sent a notice dated 21 September 2017 which is attached as an exhibit to Claimant’s witness statement at page 11.

    11) However, the court is referred to the last sentence of the second paragraph of the notice which states: “We have received your details following a transfer of liability naming you as the keeper of the vehicle”.

    12) I submit that the above statement is false as no such transfer of liability ever took place and the Claimant has not provided any evidence to prove the truth of such a statement and therefore the Claimant is put under strict proof to provide evidence to the contrary.

    13) Liability can only be transferred lawfully by strictly following the conditions set out under Schedule 4 of the Act. The Claimant has not followed the procedure under the Act and therefore attempts to transfer liability unlawfully.

    14) I refer the court to POPLA Lead adjudicator and Barrister Mr Henry Greenslade’s statement in the POPLA Annual Report of 2015: “The only presumption that anyone else is liable for such a charge is under Schedule 4 of the Protection of Freedom Act 2012”

    15) The Court is referred to paragraph 6 and 7 of the Claimant’s witness statement. I submit that the Claimant having incorrectly presumed that I was the Keeper/Registered Keeper on the basis of my letter to the Claimant has a significant relevance to the case by reason that it demonstrates that the Claimant failed to meet paragraph 11(1)(a) and 11(1)(c) of the Act:
    “(a) the creditor (or a person acting for or on behalf of the creditor) has made an application for the keeper’s details in relation to the period of parking to which the unpaid parking charges relate”
    “(c) the information sought by the application is provided by the Secretary of State to the applicant.”

    16) For paragraph 11(1)(a) & (c) to have been met, the Claimant would have to have applied to the DVLA for the name and address of the Registered Keeper, in relation to that specific period of parking. If this had occurred, the DVLA (on behalf of the Secretary of State) would return the details of Mrs xxxx instead and it would have been apparent to the Claimant that I was not the Registered Keeper of the vehicle.

    17) An inference conclusion can therefore be drawn that the Claimant did not receive my details from the DVLA and have used details from my letter dated 16 August 2017, in non-compliance with paragraph 11(1)(c).

    18) The court is referred to paragraph 8 of the Claimant’s witness statement in which the witness makes an inconsequential point. Even if I did not inform the Claimant that I was not the driver or Registered Keeper at any point prior to the proceedings; under statutory law I cannot be retrospectively bound to any contractual terms and liability is not transferred to me because the Claimant has failed to comply with the conditions set out under Schedule 4 of the Act.

    19) Furthermore, the witness makes an absurd suggestion in paragraph 8 of the Claimant’s witness statement that I, as the Defendant, have the obligation to prove by evidential submission that I was neither the driver or Registered Keeper of the vehicle. It is a preposterous attempt to reverse the burden of proof under English Law which requires the Claimant to prove his or her case on the balance of probabilities.

    Pre-estimated loss or penalty

    20) The signage provides for a parking charge of £100 if the terms and conditions of parking are breached. The Claimant seeks £160 which is an extravagant and unconscionable penalty, and therefore unenforceable.

    21)!In ParkingEye Ltd v Beavis the Supreme Court recast the test to be applied when seeking to distinguish a liquidated damages clause from a penalty clause. To engage a penalty the question was whether the relevant provision was “unconscionable” or “extravagant” (Lord Hodge at [221]). The full test was expounded by Lord Hodge (at [255])

    22) The Supreme Court was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable (ParkingEye v Somerfield). The charge to the Defendant of £160 is evidently extravagant and unconscionable in that it is disproportionate to the Claimant’s interest, and disproportionate to the highest level of damages that could possibly arise from the Defendant’s alleged breach of contract

    23) I therefore dispute the amount claimed, as it comprises excessive and non-contractual elements, and additional costs must be proved. With reference to paragraph 18 of the Claimant’s witness statement, the Claimant claims a sum of £160 as a ‘parking charge’ (for which liability is denied), which includes £60 that the Claimant has untruthfully presented as contractual charges, which amounts to double charging.

    24) Furthermore, the Act does not permit the Claimant to recover a sum greater than the parking charge before a Notice to Keeper is issued. In any event the Act is clear that a vehicle keeper would only be liable for the amount of the penalty charge notice, and no further costs.

    Solicitor costs

    25) The Claimant has claimed a £50 legal representative’s cost on the claim form, despite being well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims Court. I have the reasonable belief that the charges have not been invoiced and/or paid.

    26) I also have a good faith belief that due to the sparse particulars the £50 claimed for filing the claim has not been incurred. This appears to be an attempt at double recovery as a way to inflate the value of the claim. The solicitor has been incompetent and is not due £50. In the alternative, the Claimant is put to strict proof to show how this cost has been incurred.
    !
    I believe that the facts stated in this Witness Statement are true.!



    Put in a redacted copy, and explain that for data protection reasons and because you have no intention of 'transferring liability' to your Aunt which might give the green light to these aggressive thugs to pursue her instead, her address is covered but all other details are shown to prove you were not the rk at the material time and never have been the rk of this car.
    Originally posted by Coupon-mad
    • Coupon-mad
    • By Coupon-mad 11th Jul 18, 11:14 PM
    • 61,458 Posts
    • 74,346 Thanks
    Coupon-mad
    9)I further submit that the court applies the Without Prejudice Rule and prevents the letter to be admitted as evidence in the case. In!Rush & Tompkins Ltd v Greater London Council and others [1988] UKHL 7, Lord Griffiths stated that: "the contents of the without prejudice correspondence ... will not be admissible to establish!any admission!(emphasis added) relating to the [party's] claim."
    For that reason, you can't use 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.

Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

2,606Posts Today

8,469Users online

Martin's Twitter
  • RT @Dora_Haf: @MartinSLewis So many people on here saying they're great until you get your PROPER job. What if Your proper job Is ON zero?

  • RT @hslt88: @MartinSLewis I?m a trustee for a youth charity. We only have a limited pool of funds for flexible youth workers for holiday sc?

  • RT @Dan_i_elle_88: @MartinSLewis Loved working zero hour agency care work. Never out of work and I loved having the flexibility! Only left?

  • Follow Martin