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PCN at Claims Court Stage
Tweaky
post Thu, 22 Feb 2018 - 21:19
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Hey guys. Just wanting some advice on a current situation!

So to start from the very beginning:

The driver received a PCN for overstaying by 10 minutes and a couple of seconds over the allowed limit roughly this time last year, in a privately owned car park outside Costa Coffee. The alleged incident took place on the 8/**/2017 and the driver received a PCN with an issue date of 27/**/2017 and has ANPR proof.

This came about due to a few different things; the car park the driver parked in was directly next to another car park with a different allocated time limit (90 minutes). The signs within the actual car park they stayed in did state 60 minutes, but it was straight after a night shift, and they didn't pay much attention and just assumed it was 90 minutes. Once the driver finished their 'amazing' coffee, they didn't feel overly well, they put this down to tiredness from their night shift. Not going into details, but sometimes coffee just doesn't agree with them and makes them feel very light headed and needing a visit to the throne room mellow.gif . Due to them thinking that they still had plenty of time left they didn't worry about their car and just had a rest for 15 minutes until they felt well enough to drive home. There was the option to place their number plate in an iPad or some sort of machine like that to waver the 1 hour limit, but the driver wasn't aware that they weres able to do this, and didn't see any posters or leaflets to infrom them about this.

Over the last year they have received numerous 'warnings' and 'threats' from companies such as ZZPS and Wright Hassell with the total amount rising with each letter.

Yesterday they received a County Court Claim form, obviously they are going to appeal the full amount which comes to £327.xx

Any advice regarding their case would be most welcomed, if you need any more details then feel free to ask!

Thanks in advance

rolleyes.gif

This post has been edited by Tweaky: Thu, 22 Feb 2018 - 21:24
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post Thu, 22 Feb 2018 - 21:19
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nosferatu1001
post Mon, 26 Feb 2018 - 23:33
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You were told it was minor. Not that it should be removed.

Have you at least covered the above? And others from cel threads?
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Tweaky
post Tue, 27 Feb 2018 - 10:16
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i dont currently have access to the ZZPS or HW letters that were sent to me, I was sure I kept it safe but it’s must have been purged with the rest of my junk mail, daft I know!

Do CEL normally do the same routine in regards to their paper trails? Is there’s a link to a defence that includes the above issues with the ZZPS/HW chain letters?

This post has been edited by Tweaky: Tue, 27 Feb 2018 - 12:42
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Redivi
post Tue, 27 Feb 2018 - 11:07
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Have a look through some threads

Some are bound to include examples of the letters
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Tweaky
post Tue, 27 Feb 2018 - 22:26
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Okay, i believe my defence is finished!

I apologise to those who i have used to help draft my defence, a thank you goes out to you all smile.gif

Do you knowledgable chaps and chapettes think it's ready to go:

IN THE COUNTY COURT
CLAIM NO. --------------
BETWEEN:
Civil Enforcement LTD - Claimant
AND
--------------- Defendant

DEFENCE

Introduction

1. I am ------------, the defendant in this matter. My address for service is ---------------

2. This is my statement of truth and my defence.

3. For the avoidance of doubt on the relevant date I was the keeper of vehicle registered number --------------. I can neither confirm nor deny who was driving on the day as it is some time since the event.

4. It is believed that it will be a matter of common ground that the purported debt arose as the result of the issue of a parking charge notice in

relation to an alleged breach of the terms and conditions by the driver of the above vehicle when it was parked at ---------------.

My Defence

I deny I am liable to the Claimant for the entirety of the claim on the following grounds, any of which are fatal to the Claimant’s case-

1. The original Parking Charge Notice:

a. was served to the defendant 5 days late. The Protection of Freedoms Act 2012 Schedule 4 (POFA) section 9 (4) requires that the Claimant issues a Notice

to Keeper within 14 days of the date of incident, which allegidly occured on --------------. This arrived on ---------------, which exceeds the 14 days and the defendant cannot be held liable. There was no indication that these dates were fabricated in any way and must be taken as fact.

b. states the vehicle in question was parked at the above car park 'From: ---------------- To: --------------'. This time is within the allotted

'time of one hour free parking' which in addition must include a minimum grace period of 10 minutes as mentioned in the AOS Codes of Practice paragraph 13.4, which states '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'.

Therefore, if the times stated are indeed correct, then the defendant was not in breach of the terms and conditions and cannot be held accountable for

parking charges.

c.includes alleged ANPR evidence of a breach of terms and contract taking place. As per the AOS Code of Practice 20.5a 'When issuing a parking charge

notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which

you claim was unauthorised. A date and time stamp should be included on the photograph'. The PCN ANPR photographs do not include any timestamps and also

do not show the vehicle in a parked position, and there-fore cannot be used as solid evidence that a breach of terms and conditions has taken place

c. demanded requirement of "payment in accordance with parking terms and conditions clearly stated on the signage", however did not include images of

aforementioned signage. Instead opting to write a sentence which is under a different wording to that which was stated on the signage at the time of the

alleged incident

2. The Claim Form issued on the ------------------ by by Civil Enforcement Limited:

a. was not correctly filed under The Practice Direction as it was not signed by a legal person. The claim does not have a valid signature and is therefore

not a valid statement of truth. It states that it has been issued by “Civil Enforcement Limited” as the Claimant’s Legal Representative. Practice

Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the

party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer.

b. includes particulars of claim that are extremely sparse and divulged no cause of action nor sufficient detail. The level of detail is nothing that

could be considered a fair exchange of information. It contains no details in regards to the terms and conditions, does not show any proof of a mutual

agreement between the defendant and claimant to enter a contract, does not include the origanal ANPR photographs that were included in the PCN or indeed

any evidence of contravention.

d. includes a sum of £50, described as ‘Legal representatives’s costs’. The Claimant is known to be a serial litigant. Given a standard working week, the

claimant’s legal representative can spend no more than a few minutes per claim, hardly justifying the £50. Since these are fully automated, no

intervention is required by a solicitor, and the Claimant is put to strict proof to show how this cost has been incurred. It is believed that the employee

who drew up the paperwork is remunerated and the particulars of claim are templates, so it is simply not credible that £50 'legal representative’s (or

even admin) costs’ were incurred. The attention of the court is drawn to para. 4(5) Schedule 4 Protection of Freedoms Act 2012 which sets out that the

maximum amount recoverable from the registered keeper, where the keeper liability provisions have been properly invoked (which is expressly denied in this

case) is that amount specified in the Notice to Keeper (whether issued in accordance with paras 8(2)c; 8(2)d, 9(2)c or 9(2)d of the Act).

e. states within the Particulars of Claim; 'Time In: ------------- Time Out:------------------' The information provided here seems to be portrayed in a way as to cause

confusion in regards to the AOS Codes of Practice paragraph 13.4, and appears to deliberately omit delicate information in regards to the aforementioned

‘grace period’. This information is the time of the alleged event with seconds included, which when ommited makes the times 'appear' outside the grace

period.

3. The claimant(s):

a. is a speculative serial litigant, issuing a large number of identical 'draft particulars'. The badly mail-merged documents contain very little

information and are very vague.

b. has not complied with pre-court protocol (as outlined in the new Pre Action Protocol for Debt Claims, 1 October 2017). As an example as to why this

prevents a full defence being filed at this time, a parking charge can be for trespass, breach of contract or a contractual charge. All these are treated

differently in law and require a different defence. The wording of any contract will naturally be a key element in this matter, and a copy of the alleged

contract has never been provided to the Defendant. The Beavis case confirmed the fact that, if it is a matter of trespass (not breach of any contract), a

parking firm has no standing as a non-landowner to pursue even nominal damages.

c. has claimed debt + damages for the registered keeper of the vehicle but has yet to provide adequate support that the original ANPR pictures show the

keeper or the driver in any aspect of the alleged offence, and have also yet to provide adequate proof that they have been issuing correspondence to the

right person. In compliance with the AOS Codes of Practice 23.1c 'Before serving a Letter Before Claim and prior to the issue of proceedings, Operators

must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavours to ensure that the person being written to is the

correct party'

d. failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the

parking event and with fully compliant statutory wording, this Claimant is unable to hold me liable under the strict ‘keeper liability’ provisions.

Schedule 4 also states that the only sum a keeper can be pursued for (if Schedule 4 is fully complied with, which it was not, and if there was a 'relevant

obligation' and relevant contract' fairly and adequately communicated, which there was not) is the sum on the Notice to Keeper. They cannot pluck another

sum from thin air and bolt that on as well when it is believed that neither the signs, nor any NTK mentioned a possible additional sum of money for

outstanding debt and damages.

e. failed to meet the Notice to Keeper obligations of Schedule 4 of the Protection of Freedoms Act 2012. Absent such a notice served within 14 days of the

parking event and with fully compliant statutory wording, this Claimant is unable to hold the Defendant liable under the strict ‘keeper liability’

provisions. Schedule 4 of the Protection of Freedoms Act 2012 also states that if no physical Parking Charge Notice was placed on the vehicle, the Parking

Charge Notice must be served within 14 days of the incident occurence, however in this case, it was served after this period.

f. is an approved member of the British Parking Association, an independent body which represents, promotes and influences best practice in the parking

sector throughout the UK and Europe, and also an approved member of the Approved Operator Scheme (AoS) . THE BPA set up the Approved Operator Scheme, to

describe ‘best practice’ for people and organisations that carry out parking control and enforcement on private land. All members of the AOS have agreed

to support and uphold the principles of the Code. However the claimant has breached numerous principles and guidelines within the AoS, referenced in the

aforementioned paragraphs 1b, 1c and 3c.

g. is required to have the written authority of the landowner, on whose behalf they are acting as an agent. Section B.1.1 of the IPC Code of Practice

outlines to operators '1.1 If you operate parking management activities on land which is not owned by you, you must supply us with written authority from

the land owner sufficient to establish you as the “Creditor” within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event

to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part

of a contract but it must include the express ability for an operator to recover parking charges on the landowner's behalf or provide sufficient right to

occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability

provisions.' The Claimant, and their legal representatives, have failed to supply the Defendant with evidence of such authority.

h. reference to the Beavis vs Parking Eye judgement is clearly included as an erroneous means to attempt to gain advantage by suggesting the judgement

would seal this case.

4. The claimant has added unrecoverable sums to the original parking charge. I challenge the total claimed amount of sleep.gif_-_-_-_-_-_-_. I deny the Claimant is

entitled to any interest or indeed any claim whatsoever. I believe with good cause that documents prepared are merely templates and mail merges that have

not complied with protocol and therefore the amounts claimed are unjustified and false.

5. I put the Claimant to proof that it issued a claim for £140 after sending the Letter Before Action. It is my belief that it passed the account to a

debt collector (ZZPS) for no purpose except to inflate the amount.

6. As Wright Hassall were to be engaged by ZZPS (letter from ZZPS dated -----------------------------) not by Civil Enforcement Limited, the fee of £30 plus VAT is non

recoverable. I believe this to be a fabricated additional amount as the name Wright Hassall has not been mentioned since and no correspondence of any kind

has been received from Wright Hassall.

7. I put the Claimant to proof that it paid ZZPS the £60 added to the alleged debt.

8. Even if a contract with the Driver had been established it would be void. The Defendant asserts that the Claimant was not acting in “good faith” and

that the charges are unlawful, as they are in breach of the Unfair Terms in Consumer Contract Regulations 1999, specifically regulation 8(1) of the

Regulations and article 6(1) of the Unfair Terms Directive (in providing that an unfair term is not to be binding on the consumer), which is to redress

the imbalance between the contracting parties’ bargaining power, and to re-establish equality between them, so that the contract terms which bind the

parties are such as the parties would have agreed if they had negotiated the contract on equal terms.

The Defendant denies any liability whatsoever to the Claimant in any matter and asks the Court to note that the Claimant has:

i. Failed to disclose any cause of action in the incorrectly filed Claim Form issued on -----------------------.
ii. Sent a template, well-known to be generic cut and paste 'Particulars' of claim relying on irrelevant case law (Beavis) which ignores the fact that

this Claimant cannot hold registered keepers liable in law, due to their own choice of non-POFA documentation
iii. Failed to comply withe Protection of Freedoms Act 2012 and the British parking Asccosiation Code of Practice. (I ask the court to acknowledge the

ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) case that states that parking notices are penalties that can only be enforced if certain conditions

are met, one of these conditions being compliance with the BPA Code of Practice.

Due to the length of time, the Defendant has little to no recollection of the day in question. It would not be reasonable to expect a registered keeper to

be able to recall the potential driver(s) of the car over 10 months later. In any case, there is no such obligation in law and this was confirmed in the

POPLA Annual Report 2015 by parking expert barrister and Lead Adjudicator, Henry Greenslade, who also clarified the fact that registered keeper can only

be held liable under the POFA Schedule 4 and not by presumption or any other legal argument.

Alternatively, the Defendant asks that the Claimant is required to file Particulars which comply with Practice Directions and include at least the

following information;
i. Whether the matter is being brought for trespass, breach of contract or a contractual charge, and an explanation as to the exact nature of the charge
ii. A copy of any contract it is alleged was in place (e.g. copies of signage)
iii. How any contract was concluded (if by performance, then copies of signage maps in place at the time)
iv. Whether keeper liability is being claimed, and if so copies of any Notice to Driver / Notice to Keeper
v. Whether the Claimant is acting as Agent or Principal, together with a list of documents they will rely on in this matter
vi. If charges over and above the initial charge are being claimed, the basis on which this is being claimed
vii. If Interest charges are being claimed, the basis on which this is being claimed.

Once these Particulars have been filed, the Defendant asks for reasonable time to file another defence.

The court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

I confirm that the above facts and statements are true to the best of my knowledge and recollection.


PS,i found my ZZPS and Letter Before Claim

PPS, apologies for the wierdness above, didn't copy/paste correctly from notepad :/

This post has been edited by Tweaky: Tue, 27 Feb 2018 - 22:28
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Tweaky
post Wed, 28 Feb 2018 - 13:15
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Sorry to bump.... any suggestions before i forward this?
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