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Claim Form - NPS / DCB Legal
dc1992
post Sun, 20 Jan 2019 - 17:07
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Hi,

I have been directed over here from the forum at legal beagles for some advice on how to begin preparing a defence.

I have received a claim form from DBS Legal Ltd on behalf of Northern Parking Services for the sum of £850.25. The particulars of the claim are:

1. The Claimant claims a debt in the sum of £640 for unpaid parking charges incurred by the defendant (registered keeper/driver) for breaching the terms and conditions of parking on private land which is either owned or operated by the claimant, together with debt recovery costs incurred.

2. Despite several reminders and requests the defendant has failed to pay sums due.

3. The claimant claims court fees and costs. The claimant claims interest under section 69 of the county courts act 1984 at the rate of 8% a year from 24/06/17 to 17/01/19 on £640.00 and also interest at the same rate up to the day of judgement or earlier payment at a daily rate of £0.14.

Around 2 years ago the driver left my car parked outside of a shop for 4 days and received a ticket for each of those 4 days totalling £400 so I am presuming it is linked to this. Following advice the tickets were ignored and around a month later I had the car SORN and was out of the country for the next year. This is the first correspondence I have received with regards to the parking tickets other than the initial tickets themselves.

I have responded saying I intend to defend all of this claim and have began to draft SAR to send to NPS and CPR31.14 request to send to the solicitors.

I'm also going to go to where the car was parked tomorrow to take pictures of any signs there may be but until then is there anything else I can be doing to prepare a defence?

Apologies if this has already been covered elsewhere and thanks in advance for any advice offered.

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post Sun, 20 Jan 2019 - 17:07
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ostell
post Mon, 11 Feb 2019 - 08:14
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Here's some text I saved about forbidding signs. Suggest you weave it, suitably edited, into your defence?

The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.
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dc1992
post Mon, 11 Feb 2019 - 17:07
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QUOTE (nosferatu1001 @ Mon, 11 Feb 2019 - 08:12) *
You havent actually pointed out they have failed to meet the requirements of POFA, and detailed which elements of POFA they have missed

If there was NO windscreen ticket then 36 days is well after the 14 dya perior required in POFA2012 schedule 4 para 9
Have you read through POFA sched 4 para 8 or 9 yourself? Its very easy to read.


There was a windscreen ticket but paragraph 8 (5) suggests the notice to keeper has to be delivered within 28 days, beginning the day after the windscreen ticket. Am I reading that correctly, meaning that because the notice was issued 36 days after the initial windscreen ticket it is invalid?



QUOTE (ostell @ Mon, 11 Feb 2019 - 08:14) *
Here's some text I saved about forbidding signs. Suggest you weave it, suitably edited, into your defence?

The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.


Thanks, I will edit and put into my defence accordingly.
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nosferatu1001
post Mon, 11 Feb 2019 - 18:48
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You're reading it wrong

The earliest is 28 days
The latest is 56
So36 is fine
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dc1992
post Mon, 11 Feb 2019 - 19:10
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Ah no worries. I have 4 more days until I have to submit the defence. My main argument is that the sign is hard to read in daylight and there is no lighting on the street so the driver was unaware of sign until they returned to get the car 4 days later.

I will remove the references to POFA. Are there anymore adjustments you would make to the order any other appropriate defences I have missed?

Thanks again
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nosferatu1001
post Tue, 12 Feb 2019 - 10:53
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Have you checked the rest of para 8? Checked that EVERYTHING is there? Before removing POFA as a defence point, you need to do this.

SIgns and standing MUST be challenged, as ever

Forbidding sign so no offer meaning no contract
Signage could not be seen (was it at night? if so dont say you cant see the signs in daylight, say the driver cant see the signs at night AND EVEN IN daylight they are hard to read)
DO the signs mention "every 24 hours" ? If not, then only one charge is possisble as only one possible breach can occur.

Standing - do they have ac onitract for the site?
Compliance with the relevant CoP - pick out ANY FAILURES you can in this. The Supreme Court stated that compliance with the CoP of the ATA was required as part of tehir finding that the charge wasnt a penalty any longer.
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dc1992
post Tue, 12 Feb 2019 - 18:14
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I have double checked paragraph 8 and the only thing that is missing is 2(g) ''inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available''. Does there always have to be a discount offered and thus I can use in my defence or just a case of no discount being offered?

The sign does state that 'you will be liable for additional parking charges for each and any subsequent 24 hour period (or part thereof) that the vehicle remains or if it returns at any time'. The second ticket was however issued within 24 hours of the first one. Does the 'or part thereof' cover them for this or can I use this in my defence?

Sorry for my ignorance but what does CoP and ATA stand for?

I have been advised that it is better to post a defence as this makes it easier for the judge to read rather than using my online account. Would you agree and if so I take it i would need to post this at least the day before my defence is due? (15th Feb)
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Redivi
post Tue, 12 Feb 2019 - 19:19
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CoP of the ATA : Code of Practice of the Approved Trade Association

Convert the defence into a pdf, add your signature and email it
Don't use the online - it doesn't have enough room and messes up your formatting

You need to expand that defence and add more points

Start with the Particulars of Claim
Do they explain exactly what the driver did that entitles NPS to a payment ?
If not, the Particulars of Claim disclose no cause of action

If not the driver, clearly say so
Then explain that there are POFA failures and NPS has never had any right to recover payment from you as registered keeper

How many windscreen tickets were there ?
There must be a matching windscreen ticket for every Notice to Keeper
NPS must also make a new application to the DVLA for every windscreen ticket - they fail POFA at the first hurdle if they use details on file
Check with the DVLA
Meanwhile say in your defence that you have the reasonable belief that NPS didn't apply and is put to proof of the fact

You have the reasonable belief that NPS is not the landowner
The Code of Practice requires that it has written authority to issue claims
Make it prove the fact

Use Ostell's point that the signs were forbidding and no contract was possible
If the driver did anything wrong he was a trespasser and NPS can never have any legal capacity

You have the reasonable belief that NPS hasn't paid £60 each for debt collection
Make them prove it
Even if it has, it can't recover debt collection charges from the registered keeper if he wasn't driving

Nosferatu's comments about the signs - difficult to read in daylight and impossible at night
If no lighting, say so
Comment on any failure to meet the Code of Practice
Refer in particular that it's impossible to read the "new notice every 24 hrs" clause
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dc1992
post Tue, 12 Feb 2019 - 21:09
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Thankyou so much for the help. I'm in the process of editing the defence and have already sent of a SAR request to the DVLA.

Which part of POFA should i link the part of the defence about requesting information each time. Is it '6.5 The landholder can only request registered keeper details from the DVLA, and not obtain this information by any other means in order for Schedule 4 to apply.'?

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dc1992
post Tue, 12 Feb 2019 - 21:50
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So I've changed the order and added bits in. I struggle with the wording so if anyone can think of a better way to put anything ar change/add anything else then please let me know.




In the County Court
Claim Number:
Between
xxxx (Claimant)
and
xxxx (Defendant)





Statement of Defence

I am XXXXX, defendant in this matter. It is admitted that the Defendant was the
authorised registered keeper of the vehicle in question at the time of the alleged
incident.
The Defendant denies liability for the entirety of the claim for the following reasons.

(1) The claimant has not provided enough details in the particulars of claim to file a full
defence. In particular, the full details of the contract which it is alleged was broken
have not been provided.
a. The Particulars of Claim state that the Defendant “was the registered keeper/driver’ These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.
b. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.
c. 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.
d. On the 20th September 2016 another relevant poorly pleaded private parking
charge claim by Gladstones was struck out by District Judge Cross of St
Albans County Court without a hearing due to their ‘roboclaim’ particulars being
incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could
give rise to any apparent claim in law.’
e) On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very
similar parking charge particulars of claim were inefficient and failing to meet CPR 16.4
and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new
particulars which they failed to do and so the court confirmed that the claim be
struck out.

(2). The identity of the driver of the vehicle on the date in question has not been
ascertained.
a. The Claimant did not identify the driver
b. The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant
must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to
hold the defendant responsible for the driver’s alleged breach.

3) The defendant has the reasonable belief that NPS did not apply to the DVLA for each parking charge and therefore fails to meet the requirements of POFA schedule 4 paragraph………

4). Northern Parking Services are not the lawful occupier of the land. The defendant has 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 rights to bring action regarding this claim.
a. The Claimant is not the landowner and is merely an agent acting on behalf of the
landowner and has failed to demonstrate their legal standing to form a contract.
b. The claimant is not the landowner and suffers no loss whatsoever as a result of a
vehicle parking at the location in question
c. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

5) Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.
a) The driver could not see the signs at night and even in daylight the signage on this site is inadequate to form a contract. It is barely legible, with the terms and conditions and in particular the “new notice every 24 hour” clause impossible to read thus breaching 18.1 and 18.6 of the Code of Practice of the Approved Trade Association.
b)The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

(6) The driver did not enter into any 'agreement on the charge', no consideration flowed
between the parties and no contract was established.
The Defendant denies that the driver would have agreed to pay the original demand
of £100 per 24 hours to agree to the alleged contract had the terms and conditions of the contract
been properly displayed and accessible.

(7) 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 £400
to £640. This appears to be an added cost with apparently no qualification and an
attempt at double recovery, which the POFA Schedule 4 specifically disallows.
b) The defendant has reasonable belief that NPS has not paid £60 in debt collection fees and the claimant is put to proof they have paid such fees for each parking charge.


(8). The Defendant would like to point out that this car park can be fully distinguished
from the details, facts and location in the Beavis case. This site does not offer a free
parking licence, nor is there any comparable 'legitimate interest' nor complex
contractual arrangement to disengage the penalty rule, as ParkingEye did in the
unique case heard by the Supreme Court in 2015. The signs, as seen from the photos provided are illegible with terms hidden in small print, unlike the 'clear and prominent' signs which created a contract Mr Beavis was 'bound to have seen'.


I believe the facts stated in this defence are true.
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nosferatu1001
post Wed, 13 Feb 2019 - 03:57
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Yep that's right
They cannot use details on file
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dc1992
post Thu, 14 Feb 2019 - 17:21
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So I've converted the file to PDF added my name, date and signature to the bottom. Is there anything else I should change before emailing over?

Can I also confirm that the email address is ccbc@justice.gov.uk and I should subject it with the claim number?

Thanks
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ostell
post Thu, 14 Feb 2019 - 17:57
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3) POFA paragraph 11 for must ask DVLA every time
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dc1992
post Sun, 24 Mar 2019 - 09:38
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Hi everyone,

Thanks once again for the help so far. Everything had gone quiet at my end and I thought that they had missed the 28 day deadline for preceding further but when checking my emails I have an email from DCB legal with their directions questionnaire which they claim to have filed with the court.

I haven't received anything at all from the court other than receipt of the defence. Do I wait until I hear from the court before taking any further steps?

Thanks
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ostell
post Sun, 24 Mar 2019 - 09:47
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What was the result of the DVLA query?

You should have your own copy of the DQ to complete and return to the court and DCB. Phone and check if it has been sent out or print out a copy from the court forms available on line.
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dc1992
post Wed, 27 Mar 2019 - 17:57
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My copy has just arrived through the post today.

By the looks of it, NPS have only requested the keepers details once. Am I correct in thinking that even if the judge rules in there favour, I can only be charged for the one ticket?

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dc1992
post Wed, 27 Mar 2019 - 18:14
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As well as this I have just received NPS's response to my SAR sent to them.



It has taken them over 2 months to respond and are they correct in saying then needed my registration or PCN reference number in order to respond?

On the SAR I included my full name, current address and all previous addresses and my D.O.B. How forceful should I be with my response and can I demand they get it to me within the month they originally had but didn't stick to?
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