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Help I’m thinking about giving in and paying
Themalibukid
post Mon, 6 May 2019 - 07:47
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Dear All
I am trying to decide what I should do in respect of this claim against me and would really appreciate so sage advice at this point, I am wavering towards giving in !
Essentially I received a PCN for failure to correctly display in 28/8/17.
At the time I purchased a ticket but it was placed on the dash and was not visible to their satisfaction. We still have the original ticket. The driver parked the car and I am the registered keeper of the vehicle.
The registered keeper details having been obtained from DVLA their next correspondence was a NTK sent 8/11/17 this being 75 days after the ticket was issued.
It is my understanding that this must be served within 56 days ?
On that NTK the balance due is alleged to be a balance of £100, it is my understanding that no more may be recovered than that specified on the NTK ?
Naturally I responded and stated that I would not identify the driver, that they should not add any further costs which would amount to ‘double recovery’ and that they should not pass my details onto any debt recovery company as this would be a breach of DVLA data rules ?
I further pointed out that no loss had been incurred by any party as the full cost of parking had been paid prior to the PCN being issued.
On 6/4/2018 I received a letter from a ‘new’ company TNC Parking services requesting £179 and threatened doorstep collection services. I wrote to them and explained that I would only deal with Armtrac Security (the original claimant also known as KBT) or a court summons. This appears to be in breach of DVLA rules governing passing on data?
On 13/12/17 I received a letter from KBT Armtrac giving final notice for £60 to be paid, with an illustration of how a further £100 could be added as court costs.
On 17/1/18 I received a letter from KBT Armtrac requesting £100 with 7 days.
Once again I replied restating the facts that a ticket was purchased and that any court would consider the case “de minimis” and a waste of court time. I stated that should they continue to waste both mine and the courts time that I would be seeking costs.
Nothing else was heard until 29/11/18 where a letter was received requesting an outstanding balance of £160 be paid to BW Legal who are their approved legal service provider.
On 13/12/18 I received a letter from BW Legal requesting £160.
On 17/12/18 I received a letter from BW Legal saying that they were initiating court proceedings and would be claiming £172.26 plus costs total £247.26.
At the onset of the process I engaged with the claimant and at all further times. I have copies of all correspondence, both ways, and proofs of signed for receipt of all my replies.
My question is simple, do I have sufficient information and grounds to mount an effective challenge to this claim ?
Have I demonstrated a strong enough defence or should I give in ?
If it goes to court should I have representation on the day ?
What should I do next ?



Sent from iPad Air

This post has been edited by Themalibukid: Mon, 6 May 2019 - 08:51
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Themalibukid
post Thu, 23 May 2019 - 19:03
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Ok I’ll go back and check again so are they entitled to the £25 court fees as well as the £50 legal representative fee ?
Thanks
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Themalibukid
post Thu, 23 May 2019 - 19:32
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I’m guessing that the non descript £60 initial legal costs is the element which can’t be added ?
Also I’d be grateful if you could give some thought to the point regarding the back of the ticket as you cannot infer anything about its validity it’s just a sticker which obscures the printed times which would otherwise be visible in reverse. The sticker was not removed and they have a photo taken from outside
Thanks
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ostell
post Thu, 23 May 2019 - 21:42
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It's that £60 "Initial Legal Costs" that can't be added.
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Themalibukid
post Thu, 23 May 2019 - 21:58
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Thanks that’s great.
The only question is a response to point 4.

The Defendant fails to understand for what reason the Claimant believes it was not displayed
Even if it had been displayed face down, the reverse of the ticket has enough information to confirm that it was recently purchased and even the minimum possible paid for period had not expired.


Unfortunately regarding the back of the ticket as you cannot infer anything about its validity it’s just a sticker which obscures the printed times which would otherwise be visible in reverse. The sticker was not removed and they have a photo taken from outside
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Redivi
post Fri, 24 May 2019 - 03:26
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You didn't tell us that this was a self-adhesive ticket to be stuck to the windscreen

Not a disaster
There could have been reasons such as damp glass or not able to remove the backing

Even if it had been displayed face down, the Claimant was able to see that parking had been purchased and the driver had fulfilled the essential part of any contract,
If the driver, for any reason, did not adhere the parking ticket to the windscreen but on the dashboard where it turned over, any such failure was de minimis
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Themalibukid
post Fri, 24 May 2019 - 07:04
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OK adjustments made as per your observations which are gratefully received
Here goes:

1 I, the Defendant, am the registered keeper of vehicle reg XXXXXXXXX
I deny any liability to the Claimant

2 The Particulars of Claim fail to provide any Statement of Case that enable the Defendant to defend the Claim.
The Defendant has previously requested an explanation of the alleged contravention from the Claimant's solicitor, BW Legal. The request was received and signed by BW Legal but the request has been ignored.
The Claimant is in breach of CPR 7.4 1(b) and again at section 16.4 1(a) whereby the Defendant has expressly requested details of the key points the claimant intends to rely on in court, this should have been received within 14 days of the claim being served.
The Defendant invites the court to use its case management powers to strike out the claim in respect of this breach or to order the Claimant to file further and better Particulars of Claim.

3 The Defendant is unable to remember after such a long delay, which of two persons was driving the vehicle
The Claimant failed to serve a Notice to Keeper within 56 days and has never acquired any right to recover payment from the keeper in accordance with the Protection of Freedoms Act.

4 Although the Particulars of Claim fail to provide the information, the Defendant is aware that the contravention Notice alleges a failure to display a valid parking ticket.
The Defendant denies that there was any such failure and asserts that the ticket was purchased at the full cost and displayed on the dashboard.
The original ticket is still in their possession
The Defendant fails to understand for what reason the Claimant believes it was not displayed.
Even if it had been displayed face down, the Claimant was able to see that parking had been purchased and the driver had fulfilled the essential part of any contract,
If the driver, for any reason, did not adhere the parking ticket to the windscreen but on the dashboard where it turned over, any such failure was de minimis.

5 The Defendant asserts that the Claimant's signs were in breach of its Code of Practice.
The Defendant has checked the signs and found them to be in poor condition, faded, eroded and difficult to read, particularly from a vehicle.
At the time of the alleged offence, and when photographed afterwards, key information signs on the driving route in were concealed by signage belonging to local traders.
The Claimant has also misrepresented its authority in breach of its Code of Practice that applied at the time, Version 6 (10/15 - 01/18)
Para 14.2 states that it must not use the word "Penalty"

6 The Defendant denies that any additional charges have been incurred.
The Defendant is incredulous that the Claimant may have paid £79 to a debt collector, TNC parking services, to recover £100, whether or not it was successful, yet the Claimant's has added a £60 charge to the N.T.K. that it describes as "Contractual Costs".
There is no precedent which allows for these fabricated additional costs to be added to the claimed sum issued on the NTK.

7 The Claimant's solicitor has previously added a £60 charge that it describes as "Initial Legal Costs"
The Defendant is not only incredulous that the charge was paid but the solicitor is well aware that CPR 27.14(g) dos not permit it to be recovered in Small Claims Court

8 The Defendant invites the Court to use its case management powers under part 3 of the rules and practice directions (CPR) sections 3.4 2(a) & (b) to strike out the claim for failure to disclose a cause of action, having no prospect of success and an abuse of process that is fundamentally dishonest

I believe that the above statement is true.
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ostell
post Fri, 24 May 2019 - 07:22
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6 ) The maximum that can be recovered from the keeper is the amount on the original PCN, as dicated by POFA 4 (5).
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Redivi
post Fri, 24 May 2019 - 07:46
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QUOTE (ostell @ Fri, 24 May 2019 - 08:22) *
6 ) Even if the Claimant has incurred the charges AND the conditions of POFA had been met, the maximum that can be recovered from the keeper is the amount on the original PCN, as dictated by POFA 4 (5).

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Themalibukid
post Sat, 25 May 2019 - 20:46
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Hi
Thanks to all your careful consideration of my situation I think we are pretty close to being able to submit my defence.
This is the latest version which you can see has only had a fairly minor tweak since it was submitted for critique before.
Please let me know whether you think this is now in a submittable form.
Thanks

1 I, the Defendant, am the registered keeper of vehicle reg XXXXXXXXX
I deny any liability to the Claimant

2 The Particulars of Claim fail to provide any Statement of Case that enable the Defendant to defend the Claim.
The Defendant has previously requested an explanation of the alleged contravention from the Claimant's solicitor, BW Legal. The request was received and signed by BW Legal but the request has been ignored.
The Claimant is in breach of CPR 7.4 1(b) and again at section 16.4 1(a) whereby the Defendant has expressly requested details of the key points the claimant intends to rely on in court, this should have been received within 14 days of the claim being served.
The Defendant invites the court to use its case management powers to strike out the claim in respect of this breach or to order the Claimant to file further and better Particulars of Claim.

3 The Defendant is unable to remember after such a long delay, which of two persons was driving the vehicle
The Claimant failed to serve a Notice to Keeper within 56 days and has never acquired any right to recover payment from the keeper in accordance with the Protection of Freedoms Act.

4 Although the Particulars of Claim fail to provide the information, the Defendant is aware that the contravention Notice alleges a failure to display a valid parking ticket.
The Defendant denies that there was any such failure and asserts that the ticket was purchased at the full cost and displayed on the dashboard.
The original ticket is still in their possession
The Defendant fails to understand for what reason the Claimant believes it was not displayed.
Even if it had been displayed face down, the Claimant was able to see that parking had been purchased and the driver had fulfilled the essential part of any contract,
If the driver, for any reason, did not adhere the parking ticket to the windscreen but on the dashboard where it turned over, any such failure was de minimis.

5 The Defendant asserts that the Claimant's signs were in breach of its Code of Practice.
The Defendant has checked the signs and found them to be in poor condition, faded, eroded and difficult to read, particularly from a vehicle.
At the time of the alleged offence, and when photographed afterwards, key information signs on the driving route in were concealed by signage belonging to local traders.
The Claimant has also misrepresented its authority in breach of its Code of Practice that applied at the time, Version 6 (10/15 - 01/18)
Para 14.2 states that it must not use the word "Penalty"

6 The Defendant denies that any additional charges have been incurred.
The Defendant is incredulous that the Claimant may have paid £79 to a debt collector, TNC parking services, to recover £100, whether or not it was successful, yet the Claimant's has added a £60 charge to the N.T.K. that it describes as "Contractual Costs".
Even if the Claimant has incurred the charges AND the conditions of POFA have been met, the maximum that can be recovered from the keeper is the amount on the original PCN, as dictated by POFA 4 (5).

7 The Claimant's solicitor has previously added a £60 charge that it describes as "Initial Legal Costs"
The Defendant is not only incredulous that the charge was paid but the solicitor is well aware that CPR 27.14(g) dos not permit it to be recovered in Small Claims Court

8 The Defendant invites the Court to use its case management powers under part 3 of the rules and practice directions (CPR) sections 3.4 2(a) & (b) to strike out the claim for failure to disclose a cause of action, having no prospect of success and an abuse of process that is fundamentally dishonest

I believe that the above statement is true.

XXXXXXXXXXX
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Themalibukid
post Thu, 30 May 2019 - 14:49
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QUOTE (Jlc @ Mon, 6 May 2019 - 16:00) *
Ah, don't ignore that one!!!

Do you have pictures of how the ticket was displayed?


Well I sent off my defence to the court yesterday. Sent signed for recorded so that I can make sure it gets there in good time.
Today a letter arrived and BW legal have sent me an A4 envelope containing the results of the S.A.R.that I requested a couple of weeks ago.
It was incomplete in terms of my correspondence with Armtrac but what they did send me was about 10 photos of the car from a multitude of different angles.
Amusingly one of them contained a reflected photo of Mr Armtrac showing that their imagery was collected on a mobile phone camera. Maybe via an app because a date and time stamp was incorporated onto each photograph and did roughly match the time on the PCN.
What I can say about the photos is that there was not one single clear photo showing the ticket.
There was also not one photo showing the ticket and the registration plate of the vehicle in the same shot.
Does anybody have any guidance as to what quality and or size of Image is satisfactory for them to present as evidence?
I’m not sure and can’t find it but I am convinced there is a minimum size requirement e.g. 25% of the picture?
What they have actually got is a tiny white square on a dashboard taken through angled glass with a mobile phone which is such poor quality you cannot tell which side of the ticket is facing up.
Any thoughts chaps?
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ManxRed
post Thu, 30 May 2019 - 15:00
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The onus is on them to prove their case. If they haven't got a nice clear close up of an empty dashboard, then you should highlight that, maybe mention in your witness statement that, in response to a request you sent asking for the evidence they were to rely on, they supplied NO pictures showing the dashboard was devoid of a valid ticket?


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Sometimes I use big words I don't understand in an effort to make myself sound more photosynthesis.
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Themalibukid
post Thu, 30 May 2019 - 19:51
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I completely agree!
Unless they have deliberately held back an image that is of such damning evidential quality they have shown me nothing to prove they have a decent picture of the alleged offence.
Oh and they failed to provide me with any detail on what they intend to rely on to prove their case which I asked for ?
Tends to make me think that their case is based on the hope that I either roll over, can’t be bothered to defend myself or am bluffing.
They are gonna find out next week it is none of the above
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Themalibukid
post Fri, 31 May 2019 - 13:41
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QUOTE (ManxRed @ Thu, 30 May 2019 - 16:00) *
The onus is on them to prove their case. If they haven't got a nice clear close up of an empty dashboard, then you should highlight that, maybe mention in your witness statement that, in response to a request you sent asking for the evidence they were to rely on, they supplied NO pictures showing the dashboard was devoid of a valid ticket?


For clarification I’m not trying to prove that I had a ticket, they know that!
Their argument is that it is facedown and therefore incorrectly displayed.
What I’m saying here is that the quality of their imagery is so poor you cannot tell which way up it is.
Unless they’ve held something back from the SAR.

Thanks for your support 👍
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HappyHarry
post Fri, 31 May 2019 - 14:02
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Good luck Themal wave.gif


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“Nobody leaves their house because they want to go and do some parking; parking is simply a means to an end, and it should be as easy as possible.” Rishi Sunak, MP
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