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NCP ANPR ticket - driver not identified
MickW
post Sun, 30 Dec 2018 - 13:56
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Hello

Looking for some assistance here. My vehicle was recently driven into an NCP car park, and was photographed on entry and again on leaving after spending just under 20 minutes in the car park. The driver apparently forgot/failed for some other reason to purchase a ticket. I have received all of the usual correspondence and have written to them stating that I am not in a position to identify the driver at the material time as I cannot remember who it was that was driving the car on that particular day, and judging by the photographic evidence they have provided, neither are they (it was an ANPR ticket). I also told them that I made a request for a POPLA code at that time but received no response.

I have now received a letter before claim from their debt collector (BW Legal), and contacted NCP again pointing out all of the above and again requesting POPLA code, which they are now refusing to provide on the grounds that it’s ‘too late’ and they are directing me back to the debt collector.. I haven’t corresponded with them yet, but realise that the clock is ticking.

I have contacted NCP once more stating that my request for a POPLA code is still valid, as there is nothing whatsoever to prevent them from considering a challenge at any stage. I am also saying that refusing access to their alternative dispute resolution procedure on these grounds would be unreasonable and a breach of the Civil Procedure Rules.

I have made an SAR asking for all correspondence in relation to this matter, but they have not fully complied, only sending me a copy of their 'final reminder' document which shows their 'photographic evidence' which, as stated, only shows the bottom half of the front and rear of the car entering and leaving the car park and does not show who was driving. I have requested that they fully comply with the SAR by providing me with copies of the NTK, PCN and any other relevant documents and I will update this thread once I receive a response to these latest requests.

Ultimately I am basing my appeal on the fact that they have failed to identify the driver of the vehicle at the material time, and cannot hold the registered keeper of the vehicle liable for a contravention that was carried out by an unidentified person. I am not legally responsible for the actions of the person driving the vehicle, and they could not legally oblige me to provide them with the identity of the driver, even if I were in a position to do so.

Not too sure how strong this defence would be in court so that’s one thing I could do with some advice upon – something to do with whether POFA applies(?) and I am not sure whether it does in this instance.

I realise I may be skating on thin ice but any input would be gratefully received.

Thanks for any advice you may be able to give.


M

This post has been edited by MickW: Sun, 30 Dec 2018 - 14:17
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post Sun, 30 Dec 2018 - 13:56
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MickW
post Sat, 9 Mar 2019 - 12:57
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QUOTE (Ollyfrog @ Fri, 8 Mar 2019 - 23:29) *
http://www.legislation.gov.uk/ukpga/2012/9...edule/4/enacted Section 9. (5) (6)

Thought you would have known this Act inside out by now. Check the rest of it against your NtK that was allegedly sent.


Point taken but l I've only just received an alleged copy of the NtK so now I am going through it to find out how many ways it is non-compliant with POFA.



QUOTE (nosferatu1001 @ Sat, 9 Mar 2019 - 12:39) *
Yep 15 whoops

Ok so two,fails


I'm thinking maybe three if I'm right about Schedule 9 (2)(a) e.g. the period of parking having to be specified in the NtK. They are showing time of entry and exit which is not the 'period of parking' but the point at which the vehicle entered and left the land - I've seen that argued elsewhere i.e. District Judge Hayes County Court on 17th March 2014 Case No: 3JD08399 where a similar claim by the Claimant failed, as the Claimant could not prove that any parking took place.

This post has been edited by MickW: Sat, 9 Mar 2019 - 14:47
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MickW
post Sat, 9 Mar 2019 - 14:08
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Thinking of sending this cheeky email in response biggrin.gif

Dear Sir/Madam

I am in receipt of your email, contents of which are noted.

I note that you have now provided a document that you claim to be a copy of the Notice to Keeper (NtK). I am assuming that your client has provided this to you as a true copy of the NtK that they are purporting to have sent to me by post. This being the case, be advised that, in order to have complied with the DPA Subject Access Request (SAR) which I made to your clients on 26/12/2018, a copy of this document should have been provided to me, however this document was not forthcoming at that time.

Accordingly, also be advised that I should immediately report your clients to the Information Commissioner's Office for failure to comply fully with my SAR and for breach of the Date Protection Act 2018 (DPA).

This being the case, either your clients are in breach of the DPA, or the document you have sent me is a fabrication (although, if the latter applies, it is not a very good one as it is non compliant with POFA 2012 on at least three counts, including date of issue).

I wonder which of these two scenarios you would subscribe to.

Best regards etc


Any thoughts?
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MickW
post Sat, 9 Mar 2019 - 16:57
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Okay I've drafted another defence which takes into account the fact that the claimants have *finally* provided a copy of a NtK - would be grateful for your thoughts/ advice:

1). The claim was issued prematurely, during pre-action exchange of information and with disregard for the Pre Action Protocol (PAP) and the Claimant’s obligations to further the Overriding Objective. The Defendant notes the failure of the Claimants and their clients to meaningfully engage in pre-action correspondence in accordance with the pre-action protocol with the express aim of avoiding contested litigation, in particular by their client's refusal to issue a POPLA code as requested by the Defendant on [date], or to try to reach a settlement by other means which were instigated by the Defendant, and their client's failure to comply fully with a Data Protection Act 2018 Subject Access Request (SAR) in which they breached the Data Protection Act 2018 by failing to provide a copy of the NtK to the Defendant in response to said SAR, but which document the Claimants subsequently produced one week before the Defendant's defence submission deadline.

2). It is admitted that at the material time, the Defendant was the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings (the vehicle).

3). It is admitted that on [date] the vehicle entered the car park at [location] and left after a period of 19 minutes and 13 seconds as indicated by the Claimants photographic evidence.

4). The Defendant avers that the Claimant is limited to pursuing the Defendant in these proceedings under the provisions set out by statute in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). However, the Defendant also avers that the Claimant does not have the right under these provisions to pursue the Defendant as the registered keeper of the vehicle for this alleged contravention, because the copy of the NtK provided by the Claimant’s client fails to meet the obligations of PoFA on three specific counts. and therefore no keeper liability can be established.
4.1. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
4.1.1. there was a 'relevant obligation'; either by way of a breach of contract, trespass or other tort; and
4.1.2. that it has followed the required deadlines and wording as described in the Act to transfer liability to the registered keeper. (emphasis mine)
4.2 The NtK does not specify the period of parking, (reference PoFA 2012 Schedule 9 (2) (a)) but merely shows two time stamped photographs, one recording the time at the point at which the vehicle entered the car park, and the other recording the time at the point at which the vehicle departed.
4.2.1 The Ntk is not in the prescribed form, reference PoFA 2012 Schedule 9 (2) (f) which states that the notice must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid. The NtK provided to the claimant is not compliant with the specific wording and information which must be provided to the keeper as per the above mentioned provisions, it therefore does not identify the claimant as the keeper or establish that the Claimant has any right to recover costs from the Defendant.
4.2.2 The NtK was not sent within the relevant period of 14 days (reference Schedule 9 (6) PoFA 2012) which states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted. The date of sending shown on the copy of the NtK provided by the Claimant’s clients is shown as 21/08/2018. The date of the alleged contravention is shown as 08/08/18, being 13 days prior to the date of sending. Therefore according to the above referenced provisions, the notice is presumed to have been delivered on 23/08/18, which is15 days after the date of the alleged contravention. These three defects demonstrate that the provisions of PoFA 2012 are not met, therefore keeper liability cannot be established.

5). The Particulars of Claim lack specificity and are embarrassing. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the un-evidenced allegations in the Particulars.

6). The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.
6.1 The PoC do not specify the nature of the alleged parking contravention
6.2 The PoC contain, in addition to the disputed 'parking charge', an appended £60 charge for what appears to be debt collection services. There is no contract in place for the keeper to be liable for an additional £60. In any case, the Defendant avers that the Claimant's legal representatives have artificially inflated the value of the Claim by adding costs of £60 in an attempt to circumvent the Small Claims costs rules concerning double recovery.

7). Failure of Claimant to provide evidence of Contract with Landowner. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with owners/keepers of vehicles at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

8). If the allegation involves an alleged overstay of minutes, the Claimant’s evidence must include the actual grace period agreed by the landowner. If the Claimant fails to evidence the actual grace period that applies at this site or suggest that only one period applies, this may be regarded as an attempt to mislead. In the absence of evidence, it will be reasonably taken to be a minimum of twenty minutes (ten on arrival and ten after parking time) in accordance with BPA guidance regarding 'observation periods' on arrival being additional and separate to a 'grace period' at the end. Reference BPA Code of Practice (13) states that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start. BPA Code of Practice (13.2) states that: If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes. BPA Code of Practice (13.4) states that: You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes. According to the time stamps on the ANPR photographs that were on the Final Reminder document provided to the Defendant under the SAR, it can be determined that at the material time, the vehicle appeared to be within the boundaries of the car park for a total of 19 minutes and 13 seconds, which falls short of the aforementioned actual grace period.
8.1 Furthermore, the reliance on ANPR evidence as provided in the demonstrably deficient NtK completely undermines the Claimant’s claim as this not only fails to determine the period of parking (placing it in breach of PoFA), but also fails to prove that any parking took place. I would refer the court to District Judge Hayes County Court on 17th March 2014 Case No: 3JD08399.

9). The relatively short period of time that the vehicle spent on the relevant land (i.e. 19 minutes and 13 seconds) means that the claimants claim is totally disproportionate to level of loss, is therefore a penalty and is unenforceable. It is for the claimant to prove that the charge is reasonable and commercially justified and a genuine pre-estimate of loss.

10). Notwithstanding any of the above, the Defendant avers that the failure of the Claimant's clients to issue a valid NtK, means that the the claim fails completely as the Claimants have failed to establish keeper liability, and therefore have no right to pursue the Defendant for costs. For this reason, the Defendant humbly requests that the claim be struck out by the Court.

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MickW
post Sun, 10 Mar 2019 - 10:01
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Just re-drafted the first paragraph:

1). The claim was issued prematurely, during pre-action exchange of information and with disregard for the Pre Action Protocol (PAP) and the Claimant’s obligations to further the Overriding Objective. The Defendant notes the failure of the Claimants and their clients (NCP) to meaningfully engage in pre-action correspondence in good faith, in accordance with the pre-action protocol with the express aim of avoiding contested litigation, namely to try to reach a settlement by an alternative dispute resolution service (Resolver) which was instigated by the Defendant on 26/12/18, or to fully comply with a Data Protection Act 2018 Subject Access Request (SAR) submitted by the Defendant on 26/12/18. The Defendant avers that NCP’s failure to comply fully with the aforementioned SAR, in response to which they failed to provide a copy of the Notice to Keeper (NtK), demonstrated that an NtK was never generated or sent, or in the alternative, that NCP were in breach of the Data Protection Act 2018. As NCP’s response to the Defendant’s SAR implied that the NtK may not have been issued, the Defendant asked NCP to issue a POPLA code so that the appeal process could be engaged, however, NCP refused to comply with this request. The Defendant also notes that despite this failure on the part of NCP to provide a copy of the NtK under said SAR, and despite communications from the Defendant to the Claimants pointing out that this document may never have been generated or sent, a document purporting to be a copy of the original NtK was subsequently produced by the Claimant one week before the Defendant's defence submission deadline.

Any thoughts on this?
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nosferatu1001
post Sun, 10 Mar 2019 - 16:30
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That it is far too long as a paragraph

Don't hesitate to use bullets if this can help to reduce the sheer length

Have a look at the example barge pole written Defence on MSE to get an idea of how you can write something concisely.
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MickW
post Mon, 11 Mar 2019 - 09:00
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Yes I agree it was a bit long winded, but there's so much info to get in there!
How's this?

1). The claim was issued prematurely, during pre-action exchange of information and with disregard for the Pre Action Protocol (PAP) and the Claimant’s obligations to further the Overriding Objective. The Defendant notes the failure of the Claimants and their clients (NCP) to either;
• meaningfully engage in pre-action correspondence in good faith, in accordance with the pre-action protocol with the express aim of avoiding contested litigation, namely to try to reach a settlement by an alternative dispute resolution service (Resolver) which was instigated by the Defendant on 11/12/18, or,
• to fully comply with a Data Protection Act 2018 Subject Access Request (SAR) submitted by the Defendant on 26/12/18.
NCP’s response to said SAR on 28/12/18 was non-compliant, as evidenced by their ability to provide a copy of a Final Reminder notice to the defendant, but their failure to provide a copy of the Notice to Keeper (NtK). This omission demonstrated that either;
• an NtK was never generated or sent, or
• NCP's response to the SAR places them in breach of the Data Protection Act 2018.
NCP’s partial response to the Defendant’s SAR carried the implication that the NtK may never have been issued. Accordingly, and in keeping with the Overriding Objective, the Defendant made a request to NCP for a POPLA code to be issued, in order that the appeal process could be engaged, however, NCP refused to comply with this request. The Defendant also notes that despite NCP’s failure to provide a copy of the NtK under said SAR, and despite communications from the Defendant to the Claimant pointing out that this document had yet to be received, and indeed may never have been generated or sent, a document purporting to be a copy of the original NtK was subsequently produced by the Claimant on 08/03/19, some seven months after the alleged parking contravention, and one week before the Defendant's defence submission deadline. The Defendant avers that the Claimant's conduct in this regard has been unreasonable.

This post has been edited by MickW: Mon, 11 Mar 2019 - 10:43
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MickW
post Mon, 11 Mar 2019 - 11:09
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Okay - I may be jumping the gun here but the clock is running down and the deadline for filing my defence is at the end of this week, so to be on the safe side I am going to have to file it online by close of play this Wednesday. I am posting the latest draft of my defence below and I would be very grateful for your comments/suggestions and will obviously be able to spend the next two days going over and fine tuning it (assuming that's all it needs)

Thanks so much for all of your help and wish me luck - here goes:

1). The claim was issued prematurely, during pre-action exchange of information and with disregard for the Pre Action Protocol (PAP) and the Claimant’s obligations to further the Overriding Objective. The Defendant notes the failure of the Claimants and their clients (NCP) to either;
• meaningfully engage in pre-action correspondence in good faith, in accordance with the pre-action protocol with the express aim of avoiding contested litigation, namely to try to reach a settlement by an alternative dispute resolution service (Resolver) which was instigated by the Defendant on 11/12/18, or,
• to fully comply with a Data Protection Act 2018 Subject Access Request (SAR) submitted by the Defendant on 26/12/18.
NCP’s response to said SAR on 28/12/18 was non-compliant, as evidenced by their ability to provide a copy of a Final Reminder notice to the defendant, but their failure to provide a copy of the Notice to Keeper (NtK). This omission demonstrated that either;
• an NtK was never generated or sent, or
• NCP's response to the SAR places them in breach of the Data Protection Act 2018.
NCP’s partial response to the Defendant’s SAR carried the implication that the NtK may never have been issued. Accordingly, and in keeping with the Overriding Objective, the Defendant made a request to NCP for a POPLA code to be issued, in order that the appeal process could be engaged, however, NCP refused to comply with this request. The Defendant also notes that despite NCP’s failure to provide a copy of the NtK under said SAR, and despite communications from the Defendant to the Claimant pointing out that this document had yet to be received, and indeed may never have been generated or sent, a document purporting to be a copy of the original NtK was subsequently produced by the Claimant on 08/03/19, some seven months after the alleged parking contravention, and one week before the Defendant's defence submission deadline. The Defendant avers that the Claimant's conduct in this regard has been unreasonable.

2). It is admitted that at the material time, the Defendant was the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings (the vehicle).

3). It is admitted that on 08/08/18 the vehicle entered the car park at the relevant location and left after a period of 19 minutes and 13 seconds as indicated by the Claimants photographic evidence.

4). The Defendant avers that the Claimant is limited to pursuing the Defendant in these proceedings under the provisions set out by statute in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA). However, the Defendant also avers that the Claimant does not have the right under these provisions to pursue the Defendant as the registered keeper of the vehicle for this alleged contravention, because the copy of the NtK recently provided by the Claimant fails to meet the obligations of PoFA on three specific counts. and therefore no keeper liability can be established.
4.1. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
4.1.1. there was a 'relevant obligation'; either by way of a breach of contract, trespass or other tort; and
4.1.2. that it has followed the required deadlines and wording as described in the Act to transfer liability to the registered keeper. (emphasis mine)
4.2 The NtK shows two time stamped photographs, one recording the time at the point at which the vehicle entered the car park, and the other recording the time at the point at which the vehicle departed. This does not specify the period of parking, (reference PoFA 2012 Schedule 9 (2) (a)) but merely the amount of time that the vehicle spent in the car park.
4.2.1 The Ntk is not in the prescribed form, reference PoFA 2012 Schedule 9 (2) (f) which states that the notice must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid. The NtK provided to the claimant is not compliant with the specific wording and information which must be provided to the keeper as per the above mentioned provisions, it therefore does not identify the claimant as the keeper or establish that the Claimant has any right to recover costs from the Defendant.
4.2.2 The NtK was not sent within the relevant period of 14 days (reference Schedule 9 (6) PoFA 2012) which states that a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted. The date of sending shown on the copy of the NtK provided by the Claimant’s clients is specified as 21/08/2018. The date of the alleged contravention is specified as 08/08/18, being 13 days prior to the date of sending. Therefore according to the above referenced provisions, the notice is presumed to have been delivered on 23/08/18, which is 15 days after the date of the alleged contravention. NCP has therefore not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, the Claimant has no lawful authority to pursue any parking charge from myself, as a registered keeper appellant.

5). The Particulars of Claim lack specificity and are embarrassing. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the un-evidenced allegations in the Particulars.

6). The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.
6.1 The PoC do not specify the nature of the alleged parking contravention
6.2 The PoC mention the issuance of a PCN, but do not specify the date on which this document was allegedly sent or “given” for the purposes of PoFA sub-paragraph (4)), therefore the 28 day payment period is meaningless and embarrassing
6.3 The PoC contain, in addition to the disputed 'parking charge', an appended £60 charge for what appears to be debt collection services. There is no contract in place for the keeper to be liable for an additional £60. In any case, the Defendant avers that the Claimant's legal representatives have artificially inflated the value of the Claim by adding costs of £60 in an attempt to circumvent the Small Claims costs rules concerning double recovery.

7). Failure of Claimant to provide evidence of Contract with Landowner. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with owners/keepers of vehicles at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

8). If the allegation involves an alleged overstay of minutes, the Claimant’s evidence must include the actual grace period agreed by the landowner. If the Claimant fails to evidence the actual grace period that applies at this site or suggest that only one period applies, this may be regarded as an attempt to mislead. In the absence of evidence, it will be reasonably taken to be a minimum of twenty minutes (ten on arrival and ten after parking time) in accordance with BPA guidance regarding 'observation periods' on arrival being additional and separate to a 'grace period' at the end. Reference BPA Code of Practice (13) states that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start. BPA Code of Practice (13.2) states that: If the parking location is one where parking is normally permitted, you must allow the driver a reasonable grace period in addition to the parking event before enforcement action is taken. In such instances the grace period must be a minimum of 10 minutes. BPA Code of Practice (13.4) states that: You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes. According to the time stamps on the ANPR photographs that were on the Final Reminder document provided to the Defendant under the SAR, it can be determined that at the material time, the vehicle appeared to be within the boundaries of the car park for a total of 19 minutes and 13 seconds, which falls short of the aforementioned actual grace period.
8.1 Furthermore, the reliance on ANPR evidence as provided in the demonstrably deficient NtK completely undermines the Claimant’s claim as this not only fails to determine the period of parking (placing it in breach of PoFA), but also fails to prove that any parking took place. The Defendant would refer the court to District Judge Hayes County Court on 17th March 2014 Case No: 3JD08399.

9). The relatively short period of time that the vehicle spent on the relevant land (i.e. 19 minutes and 13 seconds) means that the claimants claim is totally disproportionate to level of loss, is therefore a penalty and is unenforceable. It is for the claimant to prove that the charge is reasonable and commercially justified and a genuine pre-estimate of loss.

10). Notwithstanding any of the above, the Defendant avers that the failure of the Claimant's clients to issue a valid NtK, means that the the claim fails completely as the Claimants have failed to establish keeper liability, and therefore have no right to pursue the Defendant for costs. NCP has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and therefore neither they nor the Claimant have lawful authority to pursue any parking charge from myself, as a registered keeper appellants. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability does not apply. For this reason, the Defendant humbly requests that the claim be struck out by the Court.
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nosferatu1001
post Mon, 11 Mar 2019 - 11:18
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NOT ONLINE

PDF
Send it by email
You cannot possibly submit your defence via MCOL, as it is limited to 122 lines.
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MickW
post Mon, 11 Mar 2019 - 11:36
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Okay thanks for the heads up - would you say it's as good as I can get it?
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nosferatu1001
post Mon, 11 Mar 2019 - 12:58
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Im not in a good position to review defences
Funeral shortly

It is YOUR defence. YOU mus be happy with it.
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MickW
post Mon, 11 Mar 2019 - 16:10
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Hi I'm sorry to hear that - I do understand

Thanks for all the help you have given so far it is much appreciated

I am happy enough with the defence but as I have no legal background, I am probably not best placed to make that judgement call.

I'm hoping that the non-compliance of the NTK is pretty compelling, but something tells me I'm probably being a tad optimistic mellow.gif If I don't get any more suggestions for improvements or for removing potentially harmful/unhelpful points I'll file it on Wednesday.

Thanks to everyone for all your help

MW
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nosferatu1001
post Tue, 12 Mar 2019 - 17:38
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Very few people do have a legal background., but the small claims process should make some allowances for that.

What I meant was - you must understand your own defence, as youre the one in a hearing being asked questions about it smile.gif
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ostell
post Wed, 13 Mar 2019 - 08:47
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4.2 Make it quite clear that the photos were taken while the car was moving and therefore, by definition, can not be a period of parking.
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MickW
post Wed, 13 Mar 2019 - 09:41
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QUOTE (nosferatu1001 @ Tue, 12 Mar 2019 - 17:38) *
What I meant was - you must understand your own defence, as youre the one in a hearing being asked questions about it smile.gif


Yes I'm quite clear about the issues - I think the main plank of the defence is the non-compliance under PoFA of the NtK and I will also be making it clear that they behaved unreasonably by withholding it until the last minute. I think NCP will argue some kind of exemption under DPA to explain their failure to provide a copy under my SAR, but that will not alter the fact the the one they 'finally' produced is non compliant with PoFA. Their PoC's are quite weak as well - hopefully the judge will see it my way, although (at the risk of being too confident) I do feel that a non-compliant NtK that demonstrably fails to establish keeper liability should be pretty much a slam dunk!

Wish me luck!
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MickW
post Wed, 13 Mar 2019 - 09:51
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QUOTE (ostell @ Wed, 13 Mar 2019 - 08:47) *
4.2 Make it quite clear that the photos were taken while the car was moving and therefore, by definition, can not be a period of parking.


Yes - thanks Ostell - I will definitely point that out - although this is pretty well established from the photographic evidence. Also, there is a precedent (mentioned in the defence) in which it was successfully argued that ANPR images cannot establish the parking period or even prove that any parking actually took place. I think that particular case involved a driver who had entered the car park, driven around for some time looking for a space before giving up and driving away, only to receive a PCN for his troubles!
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ostell
post Wed, 13 Mar 2019 - 10:27
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It was just to make sure that the it was made glaringly obvious and not missed that the car was not parked while in front of the cameras.

This post has been edited by ostell: Wed, 13 Mar 2019 - 10:27
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MickW
post Wed, 13 Mar 2019 - 11:09
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I will add a sentence just to emphasise that - cheers smile.gif
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MickW
post Wed, 13 Mar 2019 - 13:42
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Hi just wanted to run this past you guys before I use it to head up my defence - any suggestions welcomed:

Claim Number: [REF]
BETWEEN:
xxxx (Claimant)
vs
xxxx (Defendant)

___________________________________________________________________________
Defence Skeleton Argument
I am xxxx of xxxx defendant in this matter.

The claim is denied in its entirety except where explicitly admitted here. I assert that I am not liable to the Claimant for the sum claimed, or any amount at all, for the following reasons, any one of which is fatal to the Claimant's case.

i. The Claimant has no standing to bring a case as a keeper appellant, due to their failure to engage keeper liability
ii. The length of time that the vehicle which is the subject of these proceedings was within the car park was within the grace period as set out in BPA guidelines
iii. The charge is not a genuine pre-estimate of loss and is therefore an unenforceable penalty


Save as specifically admitted in this Defence, the Defendant denies each and every allegation set out in the particulars of claim. 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 never been provided, and the date of sending of the PCN has not been specified
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MickW
post Fri, 15 Mar 2019 - 22:05
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Quick question guys - what am I to make of an email from BWL apparently in response to the email I sent them (post #83) telling me that they have been instructed by their client to put the case on hold (or words to that effect?)
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Macapaca
post Sat, 16 Mar 2019 - 09:04
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What does the email actually say? If it effectively puts the case on hold then that is an indication that they are struggling to make the case.
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