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    • frostop
    • By frostop 7th Sep 18, 12:15 AM
    • 6Posts
    • 2Thanks
    frostop
    Letter of Claim Defence - help needed
    • #1
    • 7th Sep 18, 12:15 AM
    Letter of Claim Defence - help needed 7th Sep 18 at 12:15 AM
    Any advice is much appreciated. Thank you in advance.

    I parked at Manchester Airport Pub and Grill car park and had a meal with two other people and I did not see the signage for parking charges. After receiving PCN / NTK from Vehicle Control Services Ltd I saw on Google Street View there are signs, but I missed them on entering the carpark as I was concentrating on traffic. I parked in the middle of the carpark near the pub entrance, and as all other signs appear to be on the outskirts of the carpark, and the ticket machine appears to be round the side of the building, I did not notice them either. I am not used to pub car parks that charge for parking and I did not expect there to be a charge for this car park otherwise I might have been mindful to look. That said, yes, I should have seen them, but as this forum advises I should not have to pay the extortionate amounts demanded. Also as the pub's responses to the many angry reviews on Trip Advisor their reason for the charges are "Due to the proximity of the venue to the airport we do have to charge for use of the car park as without this we would have no space for our guests." Well I was a guest. Not that I believe this matters as I contacted the pub and was told that matters with the carpark are not to do with them and I should contact the parking company.

    I followed MSE advice and appealed to the PCN / NTK using the template provided at the time, adding that the NTK failed to comply with the Protection of Freedoms Act 2012 (POFA) for being late and Vehicle Control Services Limited failed to act in time for keeper liability to apply. In this letter I asked for information relating to the landowner and whether charges were based on damages for breach of contract etc; all this information has not been provided, they said "We will only answer pertinent points at this stage" in their response to my appeal.

    The rest of the advice was to ignore the subsequent ‘fear-mongering’ letters’, which I did. Which brings me to a letter of claim from county court asking for £185, which of course increased from the initial £100. I acknowledged the letter spent time researching, and have another few days until the deadline to submit the defence.

    I have drafted the below defence. I am not optimistic, but I am so angry at potentially having to pay £185. More importantly I cannot risk jeopardising credit rating and being able to apply for a mortgage. Is there any hope, or should I just swallow the pill and pay?


    __________________________________________________ __



    “IN THE COUNTY COURT

    CLAIM No: EXXXXXXX

    BETWEEN:

    VEHICLE CONTROL SERVICES LIMITED (Claimant)
    2 EUROPA COURT
    SHEFFIELD BUSINESS PARK
    SHEFFIELD
    S9 1XE

    -and-

    XXXXXXXXXXXXXX (Defendant)


    DEFENCE

    1. It is admitted that the Defendant was the authorised registered keeper of the vehicle and the driver of the vehicle in question at the time of the alleged incident.

    2. The Defendant denies entering into any contract with the Claimant.

    2.1. The claim is denied in its entirety except where explicitly admitted here. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all. No agreement of terms/no contract

    2.2. The Claimant is pursuing the Defendant for a breach of contract, however not at any point in material time was any contract agreed.

    The parking charge terms and the sum itself was not prominent and no contract was agreed. As such the facts and circumstances of this case can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC 67, and fails to avoid falling foul of the penalty rule, due to a lack of any possibility to argue a 'legitimate interest' excuse.

    Given the facts, this Claimant's claim must fail and the court is invited to strike it out, or in the alternative, order under the Judge's own discretionary case management powers, a preliminary hearing to examine the indirect discrimination issue, to save burdening the court with a claim that has no merit.

    3. The Defendant denies they would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

    4. Notice to Keeper (NTK) fails to comply with the Protection of Freedoms Act 2012 (POFA) and the IPC Code of Conduct. Under schedule 4, paragraph 4 of the Protection of Freedom Act (POFA) 2012, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. Vehicle Control Services Limited have failed to fulfil the conditions which state that the keeper must be given notice “within the relevant period”. Paragraph 9 (5) defines a relevant period as “the period of 14 days beginning with the day after that on which the specified period of parking ended’’. The IPC Code of Conduct states that the NTK must be “given to be received by the keeper within 14 days beginning the day after the specified period of parking.” As is worded on the NTK, that was delivered by post, the ‘Issue Date’ is xxxxxxx and the ‘Contravention Date’ is xxxxxx. Therefore, this serves to highlight that the Claimant has failed to act in time for keeper liability to apply. As a result, the Defendant is not liable for any charges, as the Notice to Keeper has not been properly ‘given’ under the POFA and, per the IPC Code of Conduct, where you are otherwise unable to utilise the provisions within the Protection of Freedoms Act 2012 you must not infer that Keeper Liability under those provisions exists.

    5. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 as per the PCN issued on xxxxxx to £160 on subsequent correspondence. This appears to be an added cost with no apparent qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

    5.1 The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

    6. No offer of an independent ADR.
    Following an unsuccessful appeal to the Claimant, The Defendant researched the matter online and discovered that the Claimant is a member of the Independent Parking Committee (IPC), an organisation which in fact is run by the same two Directors who also operate the Independent Appeals Service (IAS), which claims to be an independent body that is appointed by the Claimant’s Trade Body, the IPC. The independence of this body has however been questioned as the Parking Review reported in 2016; only 20% of all appeals were upheld. The most recent lead adjudicator of POPLA, Henry Michael Greenslade in his 2015 annual report stated that ‘As the IAS does not allow motorists to see and comment on the operators entire evidence, it is by Mr Greenslade's definition an unfair service.’ As a result it appears that and any appeal was likely to have been doomed to failure.

    The Defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action and/or for the claim as having no prospect of success.

    The Defendant believes the facts stated in this defence are true.
    Last edited by frostop; 07-09-2018 at 12:24 AM.
Page 1
    • Coupon-mad
    • By Coupon-mad 7th Sep 18, 12:26 AM
    • 61,405 Posts
    • 74,311 Thanks
    Coupon-mad
    • #2
    • 7th Sep 18, 12:26 AM
    • #2
    • 7th Sep 18, 12:26 AM
    Given the facts, this Claimant's claim must fail and the court is invited to strike it out, or in the alternative, order under the Judge's own discretionary case management powers, a preliminary hearing to examine the indirect discrimination issue, to save burdening the court with a claim that has no merit.
    Eh? What indirect discrimination issue?

    Beware of cut & pasting defences where words do not make sense for your case.

    More importantly I cannot risk jeopardising credit rating and being able to apply for a mortgage. Is there any hope, or should I just swallow the pill and pay?
    Luckily, defending a claim does not jeopardise anyone's credit rating, not even if you lose. That's why we tell people to fight. We would not put your credit rating at risk!

    You would be given 30 days to pay from the Judge's decision at the hearing, and no CCJ would remain at all (not even one marked 'satisfied') on your record. Nada. NOTHING BAD AT ALL.

    And yes, we win 99% of defended cases here where people stick around and tweak their defence to make sense (your first job) and then come back for Witness Statement and evidence stage and to prep for the hearing, and almost certainly win. If not, that is the point when the fat lady sings and you pay maybe £150 (£100 PCN and £50 court fees, + maybe a few quid interest).

    Anyway back to your defence. I didn't see near the start, a defence point saying 'The facts are' and talking about this:

    the ticket machine appears to be round the side of the building,
    Was it Winter, was it dark?
    Last edited by Coupon-mad; 07-09-2018 at 12:28 AM.
    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.

    • IamEmanresu
    • By IamEmanresu 7th Sep 18, 6:15 AM
    • 3,261 Posts
    • 5,461 Thanks
    IamEmanresu
    • #3
    • 7th Sep 18, 6:15 AM
    • #3
    • 7th Sep 18, 6:15 AM
    I am not used to pub car parks that charge for parking and I did not expect there to be a charge for this car park otherwise I might have been mindful to look.
    This is a useful argument - the reasonable man. The context for the judge typically is what "normal" people do. You can argue Dennings Red Hand rule that if the signs are "out of context" there should have been more emphasis on bringing the onerous terms to a driver's attention and not just expecting the reasonable man/woman to check every part of a space. You can even quote the VCS favourite back at them - Vine v Waltham Forest which was the same issue.
    If you want to win - avoid losing first. Here are a few examples
    1. Failing to Acknowledge or Defend https://forums.moneysavingexpert.com/showthread.php?t=5760415
    2. Template defences that say nothing https://forums.moneysavingexpert.com/showthread.php?t=5818671&page=5#86
    3. Forgetting about the Witness Statement
    • frostop
    • By frostop 8th Sep 18, 1:30 AM
    • 6 Posts
    • 2 Thanks
    frostop
    • #4
    • 8th Sep 18, 1:30 AM
    • #4
    • 8th Sep 18, 1:30 AM
    Thank you both Coupon-mad and IamEmanresu for your message. I really appreciate it. I have made a new draft using your advice:

    The facts are:

    1. The Defendant was the authorised registered keeper of the vehicle and the driver of the vehicle in question at the time of the alleged incident. The defendant parked the vehicle in the middle of the car park near the front entrance to the pub / restaurant building, where the alleged incident took place.

    2. Signage out of context. The defendant would like to draw the court’s attention to Denning’s Red Hand Rule whereby in this context it is reasonable to assume that a pub / restaurant carpark would not charge for parking, and that there should have been more emphasis on bringing the onerous terms to a driver's attention and not just expecting the reasonable man/woman to check every part of a space.

    3. Insufficient signage. Since receiving a PCN / NTK the defendant has found that all signage relating to parking charges appear to be positioned on the outskirts of the carpark, and were not seen by the defendant. The defendant has also found that ticket machines appear to have been positioned around the sides of the building and not in clear sight, and were also not seen by the defendant. No signage or ticket machines appear to be present in front of the building.

    4. The Defendant denies they would have consented to any charge for a contravention of the notices had they been seen and understood. The defendant would like to draw the court’s attention to the ‘Vine v Waltham Forest’ case whereby in this context it relates as such: although it might reasonably be inferred that a motorist will see and understand the signs as a result of their numbers, size and location it is insufficient that he or she has simply had the opportunity to see warning signs but that they must also have read and understood them and only then, by doing so, could they consent to any charge if they parked in contravention to the notices. In addition, if the fee is exorbitant then consent to its payment can not be implied.

    5. The Defendant denies entering into any contract with the Claimant.
    The claim is denied in its entirety except where explicitly admitted. The Defendant asserts that they have no liability to the Claimant for the sum claimed, or any amount at all. No agreement of terms / contract were established.

    6. The parking charge terms and the sum itself was not prominent and no contract was agreed. As such the facts and circumstances of this case can be fully distinguished from ParkingEye Ltd v Beavis [2015] UKSC 67, and fails to avoid falling foul of the penalty rule, due to a lack of any possibility to argue a 'legitimate interest' excuse.

    7. Notice to Keeper (NTK) fails to comply with the Protection of Freedoms Act 2012 (POFA) and the IPC Code of Conduct. Under schedule 4, paragraph 4 of the Protection of Freedom Act (POFA) 2012, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle, if certain conditions are met. Vehicle Control Services Limited have failed to fulfil the conditions which state that the keeper must be given notice “within the relevant period”. Paragraph 9 (5) defines a relevant period as “the period of 14 days beginning with the day after that on which the specified period of parking ended’’. The IPC Code of Conduct states that the NTK must be “given to be received by the keeper within 14 days beginning the day after the specified period of parking.” As is worded on the NTK, that was delivered by post, the ‘Issue Date’ is xxxxxxx and the ‘Contravention Date’ is xxxxxx. Therefore, this serves to highlight that the Claimant has failed to act in time for keeper liability to apply. As a result, the Defendant is not liable for any charges, as the Notice to Keeper has not been properly ‘given’ under the POFA and, per the IPC Code of Conduct, where you are otherwise unable to utilise the provisions within the Protection of Freedoms Act 2012 you must not infer that Keeper Liability under those provisions exists.

    8. The Claimant has at no time provided an explanation how the sum has been calculated, the conduct that gave rise to it or how the amount has climbed from £100 as per the PCN issued on xxxxxx to £160 on subsequent correspondence. This appears to be an added cost with no apparent qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

    9. No offer of an independent ADR. Following an unsuccessful appeal to the Claimant, the Defendant researched the matter online and discovered that the Claimant is a member of the Independent Parking Committee (IPC), an organisation which in fact is run by the same two Directors who also operate the Independent Appeals Service (IAS), which claims to be an independent body that is appointed by the Claimant’s Trade Body, the IPC. The independence of this body has however been questioned as the Parking Review reported in 2016; only 20% of all appeals were upheld. The most recent lead adjudicator of POPLA, Henry Michael Greenslade in his 2015 annual report stated that ‘As the IAS does not allow motorists to see and comment on the operators entire evidence, it is by Mr Greenslade's definition an unfair service.’ As a result it appears that and any appeal was likely to have been doomed to failure.

    Given the facts, this Claimant's claim must fail and the court is invited to strike it out.

    I believe the facts stated in this defence are true.
    • KeithP
    • By KeithP 8th Sep 18, 1:29 PM
    • 9,190 Posts
    • 9,353 Thanks
    KeithP
    • #5
    • 8th Sep 18, 1:29 PM
    • #5
    • 8th Sep 18, 1:29 PM
    What is the Date of Issue on your Claim Form?
    When did you do the Acknowledgement of Service?
    .
    • frostop
    • By frostop 14th Sep 18, 5:48 PM
    • 6 Posts
    • 2 Thanks
    frostop
    • #6
    • 14th Sep 18, 5:48 PM
    • #6
    • 14th Sep 18, 5:48 PM
    What is the Date of Issue on your Claim Form?
    When did you do the Acknowledgement of Service?
    Hi - Date of issue 13th August. Acknowledgement of Service was done 20th August.

    Also have already received the Directions Questionnaire form, so I'll complete and post that soon.
    • KeithP
    • By KeithP 14th Sep 18, 7:13 PM
    • 9,190 Posts
    • 9,353 Thanks
    KeithP
    • #7
    • 14th Sep 18, 7:13 PM
    • #7
    • 14th Sep 18, 7:13 PM
    Also have already received the Directions Questionnaire form, so I'll complete and post that soon.
    Originally posted by frostop
    Surely not?

    The Directions Questionnaire does not get sent out by the CCBC until after a Defence has been filed and the Claimant has indicated to the court their intention to continue.

    We need to think again about your Claim Form.

    Did you put anything at all in the 'Defence and Counterclaim' box when doing the Acknowledgement of Service?

    Or has the DQ that you have received come from the Claimant rather than the CCBC?

    Log into MCOL NOW to see if the Claim is marked "defended".




    Putting that aside for a moment...

    With a Claim Issue Date of 13th August, and having done the AoS in a timely manner, you have until 4pm on Monday 17th September 2018 to file your Defence.

    This is becoming urgent.


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

    1) Print your Defence.
    2) Sign it and date it.
    3) Scan the signed document back in and save it as a pdf.
    4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
    5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
    6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
    7) Wait for the Directions Questionnaire and come back here.
    Last edited by KeithP; 14-09-2018 at 7:55 PM.
    .
    • frostop
    • By frostop 16th Sep 18, 5:53 PM
    • 6 Posts
    • 2 Thanks
    frostop
    • #8
    • 16th Sep 18, 5:53 PM
    • #8
    • 16th Sep 18, 5:53 PM
    Thanks Keith - sorry I skipped that - I had submitted the defence as above on 12th September, as per your instructions above that I had seen on other recent posts. I had done the acknowledgement of service and marked I will be defending.
    • Quentin
    • By Quentin 16th Sep 18, 6:14 PM
    • 37,252 Posts
    • 21,405 Thanks
    Quentin
    • #9
    • 16th Sep 18, 6:14 PM
    • #9
    • 16th Sep 18, 6:14 PM
    Nevertheless are you sure this DQ you have received is from court??


    The timescale you have given makes it impossible for you to have received it from Court following submission of your defence just 1/2 days prior to receipt of the DQ!
    • frostop
    • By frostop 16th Sep 18, 9:17 PM
    • 6 Posts
    • 2 Thanks
    frostop
    Nevertheless are you sure this DQ you have received is from court??
    The timescale you have given makes it impossible for you to have received it from Court following submission of your defence just 1/2 days prior to receipt of the DQ!
    Originally posted by Quentin
    Hi Quentin - it appears so. I can't upload a picture of it but it's headed "Notice of Proposed Allocation to the Small Claims Track", and says to complete and file it with the court office (address CCBC 4th Floor St Katherine's Houses... Northampton).

    I am ticking "no" to agreeing to the case to be referred to the Small Claims Mediation Service.
    • Coupon-mad
    • By Coupon-mad 17th Sep 18, 2:54 AM
    • 61,405 Posts
    • 74,311 Thanks
    Coupon-mad
    And it's a N180 from the court themselves?

    Not a N159 (no hearing version! eeek!) sent by VCS is 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.

    • frostop
    • By frostop 17th Sep 18, 4:49 PM
    • 6 Posts
    • 2 Thanks
    frostop
    And it's a N180 from the court themselves?
    Not a N159 (no hearing version! eeek!) sent by VCS is it?
    Hi Coupon-mad. It is a N180, yes.. this is headed "Directions Questionnaire (Small Claims Track)" and the footer says
    "N180 Directions Questionnaire (Small Claims Track) (04.14)"

    accompanied with another sheet attached headed "Notice of proposed allocation to the Small Claims Track" and the footer of this sheet says
    "N149A Notice of proposed allocation to the Small Claims Track"

    It's not the 159 version so this definitely sounds like a good thing... but is there anything I should be aware of here, or is this good to go?
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