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Debt recovery first letter received - advice please
helencooke01
post Thu, 8 Nov 2018 - 07:20
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Hi, new to the forum and hoping someone might be able to give me some advice/guidance.

I’ve checked on the stickies and FAQs and can’t find anything that is 100% relevant to my situation.

I received a debt collection letter from Trace, acting on behalf of Parking Control Management (UK) Ltd. There was hardly any information in the letter but the main gist was that I owed PCM £160 and, as I had not responded to any previous correspondence, Trace were now pursuing this debt. I immediately phoned Trace as I had no idea where the parking infraction had occurred etc. as this was the first correspondence I had received.

Trace advised that PCM had sent me 2 letters, and they told me where the infraction had occurred and the times. I advised that I had not received the 2 letters from Trace but that I knew that my husband had parked in Whittle Square etc and I would therefore be willing to pay the initial £60 fine. Trace told me to email them this information and they would review and possibly allow me to pay the initial £60 fine. I emailed Trace the same day.

7 weeks after my email to Trace they replied and said they did not accept my explanation that I had not received the letters, and that I still owed the £160 and had 7 days to pay.

I haven’t paid the £160 and have since received a Letter before Claim from Gladstones on 4th October. I have submitted an appeal on their website and have received no response. I have also submitted an appeal on the IPC website which has been closed (despite PCM not responding adequately to my queries).

My question is – what should I do? Should I just give up and pay the £160? Or should I let Gladstones take it to court? PCM have admitted that they do not have proof of posting, they can only prove that they print the letters, but that they assume I have received them both.

I have plenty of further correspondence/information that I can post to this thread if anyone is able to assist?

Thanks

Helen
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nosferatu1001
post Thu, 28 Feb 2019 - 08:10
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Well theyve followed it, apartr from the bit where they are required to GIVE the notice to you. It is assumed deliverd unless proven otherwise. Your evidcnece - a witness statement signed under a statement of truth - is evidence that it was NOT given to you!

1) Inded if they have no photos at 1745 they cannot prove the vehicle was there. Can the driver prove it was elsewhere? Additionaly mandatory GRACE PERIODS comes into play - they MUST allow reasonable time to find, read and decide whether to accept signs.
2) Yes of course you can, same as everyone does
3) It would certainly help show the signage is still inadeuqate.
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helencooke01
post Sat, 2 Mar 2019 - 13:48
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Thank you, that's really useful.

In regards to 1) the driver cannot prove they were elsewhere at 1745. Is it still worth including this in my defence? The photos on the PCM website are the same as the ones I received in the SAR so I assume PCM do not have any further photos that they are withholding and might 'whip out' in court?

I am just in the process of drafting my defence and will post it here when finished.

Thanks

Helen
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helencooke01
post Tue, 5 Mar 2019 - 12:29
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Hi, I have now drafted a defence cobbled together from various relevant defences on the MSE Forum. I have highlighted a few bits in bold/italics where I need some help please.

Any thoughts/comments welcome.

Thanks

Helen

__________________________________

IN THE COUNTY COURT BUSINESS CENTRE

CLAIM No. XXXX

Between:

Parking Control Management (UK) Limited (Claimant)
-and-
XXXXX (Defendant)

DEFENCE

Preliminary

1. The Defendant denies that the Claimant is entitled to relief claimed in the sum of £244.02, or at all, for the reasons stated in the following paragraphs.

2. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand their Particulars at a later stage of these proceedings and/or to limit the Claimant only to the un-evidenced allegations in the Particulars.

2.1 The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified thousands of similar poorly pleaded claims.

2.2 The Defendant believes the term for such conduct is ‘robo-claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. The Defendant has reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to the significant detriment of an unrepresented Defendant.

3. 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.
Do I need to include something on CPR16? I have tried reading up on it but am not well-versed enough to know whether it’s applicable. I also don’t want to include something I wouldn’t be able to explain if asked.

3.1 The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background

4) It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

5) It is denied that any "parking charges or indemnity costs" (whatever they might be) as stated on the Particulars of claim are owed and any debt is denied in its entirety.

6) It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking 'parking management'. The Claimant has provided no proof of any such entitlement.

7) It is put to the Court that the Claimant has failed to meet the conditions of the Protection of Freedoms Act (PoFA) 2012, Schedule 4, as the Notice to Keeper was not “given” within the specified time frame.
Is there a better way for me to phrase this? Do I need to refer to the Witness Statement or will it suffice that I will include this at a later date as a statement of truth?

8) The basis of the claim purports to be related to ‘Parked within a restricted area’; and it is assumed that this is related to the signage instruction that ‘Vehicles must park fully within the confines of a marked bay’.

8.1) The vehicle in question was observed to be parked at Whittle Square, Gloucester. It is not challenged that the vehicle in question was parked in the area in opposite the David Lloyd Health Club, Whittle Way, Gloucester. The vehicle was parked off the highway in an area commonly used for parking. The vehicle was in no way contravening any Highway Regulations, and was parked safely without obstructing or obscuring any vehicular traffic.

8.2) The Claimant has provided photographic evidence of the Defendant’s vehicle parked up for a period covering 15 seconds. It is therefore argued that the Claimant has not afforded the mandatory grace period to allow reasonable time for an individual to read any relevant signage before deciding whether to move the vehicle.
This is based on photographic evidence provided by PCM as part of their SAR response, and also on their website. I assume that PCM don’t have any further photographic evidence that they might product in court?

8.3) The terms on the Claimant's signage are displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

8.4) The Claimant asserts via the signage that ‘Vehicles must park fully within the confines of a marked bay’. The Defendant would argue that the parking area used by the vehicle is within a marked bay, in the context of the markings/definitions of parking bays at the front of the David Lloyd Health Club, Whittle Way, Gloucester.

The area in question does not have any painted bay markings (save for one disabled marking in the end bay) to clearly and unequivocally define the parking bays, which would be the accepted and reasonable way to identify parking bays. The wider area in question is of modern construction using a wide range of hard landscaping materials such as block pavers, stone slabs and setts in a variety of colours and finishes. There are no raised kerbs to define restricted areas or deter parking. There are no road markings (single or double-yellow lines) that might even suggest that the area in question was not fit for parking.

The area the car was parked on is of the same colour and construction as other ‘official’ parking bays adjacent, therefore it would be reasonable to assume, in the absence of specific signage, that these areas are the same.

9) It is noted by the Defendant that since the date of the alleged offence, subsequent alterations have been carried out to area in front of the David Lloyd Health Club, Whittle Way, Gloucester. This has included the addition of steel bollards to restrict vehicular access [need to check this], the addition of painted markings to identify emergency access and the erection of additional and different signage to notify parking restrictions.

9.1) It is further noted that none of these changes have been applied to the area in question, where the vehicle was parked. It is also noted that the area continues to be used as a parking bay on a regular basis by other patrons.

One that basis, the Defendant argues that either:
a) the area is considered to be a parking bay or
b) the Claimant is deliberately obscuring the fact it is not, in order to generate spurious Parking Charge Notices for monetary gain

10) The Defendant avers that, as the vehicle was parked within an area that does not have restricted access, and is not identified as such, the vehicle was parked in compliance with the signage and as such no penalty can be levied by the Claimant.

11) It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

12) The Defendant respectfully suggests that parking companies using the small claims track as a form of aggressive, automated monetary demands against motorists, is not something the Courts should be seen to support.

13) The Court is invited to take Judicial Notice of the fact that the Claimant's solicitors, Gladstones, is engaged in a course of conduct which involves issuing tens of thousands of totally meritless Claims, which are routinely dismissed by District Judges sitting in this Court, and other County Court hearing centres in all parts of England & Wales. The Court is therefore invited to refer the matter to the Designated Civil Judge, for consideration of the issuing an Extended Civil Restraint Order against the Claimant, pursuant to CPR Practice Direction 3.1(3).

14) There has been recent discussions at the House of Commons about the Parking (Code of Practice) Bill, and the rogue industry, which can be read here:
https://hansard.parliament.uk/commons/2018-...OfPractice)Bill

15) The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

16) The Defendant denies the claim in its entirety, voiding any liability to the Claimant for all amounts due to the aforementioned reasons. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

17) If the court is not minded to make such an order, then when Directions are given, the Defendant asks that there is an order for sequential service of witness evidence (rather than exchange) because it is expected that the Claimant will use its witness statement to provide the sort of detail which should have been disclosed much earlier, and the Defendant should have the opportunity to consider it, prior to serving evidence and witness statements in support of this defence.

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

Signed

Date



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nosferatu1001
post Tue, 5 Mar 2019 - 13:30
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If they have witheld person info from a SAR, that they later use in a witness statement, you would have a fairly good case for unreasonable behaviour right there nd then, and such a strong complaint to the ICO....!

1) Either the vehicle was there at 1745 or it wasnt
If it was not, state so
If it was, then yuo dont have a reason to really talk about it
You do have proof - the person who knows where it actually was at 1745 states so in a signed witness statement. If you know, you do this. Youw ould have to explain how, and the more detail thatcan be given to support that, teh better.
so
1) it wasnt there - if true is a fact but not that convincing
2) it wasnt there in fact it was at... is more convincing
3) it wasnt there, it was at and that was to do... is even more convincin
Is that clear?

8.4 isnt clear to me
Were there marked bays or not? If not, then state that there were no marked bays
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helencooke01
post Wed, 6 Mar 2019 - 13:48
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Thanks - as I can't prove the driver was elsewhere at 17:45 I will remove this section.

8.4 - I've updated as below - there aren't really any marked bays anywhere along the road, but also the kerbs are dropped/no yellow lines etc and other people were parked there at the time.

8.4) The Claimant asserts via the signage that ‘Vehicles must park fully within the confines of a marked bay’. The Defendant would argue that the parking area used by the vehicle is within a marked bay, in the context of the markings/definitions of parking bays along this stretch of road.

Please could you also cast your eye over these sections?

3. 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.
Do I need to include something on CPR16? I have tried reading up on it but am not well-versed enough to know whether it’s applicable. I also don’t want to include something I wouldn’t be able to explain if asked.

7) It is put to the Court that the Claimant has failed to meet the conditions of the Protection of Freedoms Act (PoFA) 2012, Schedule 4, as the Notice to Keeper was not “given” within the specified time frame.
Is there a better way for me to phrase this? Do I need to refer to the Witness Statement or will it suffice that I will include this at a later date as a statement of truth?

Thanks

Helen
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nosferatu1001
post Wed, 6 Mar 2019 - 14:35
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Erm, no. SOMEONE Can prove the vehicle was not there at 1745! A signed witness statement *is evidence*
If it was NOT THERE then you cannot say it WAS!
You cannot admit it was
You cannot say it was
Yo uhave to tell the truth

8.4) Then boody say that! State the area has dropped kerbs, many other vehicles were parked in teh same manner and there was no indication that this was not permitted.

3) Yes this is enough. It basically says they have to explain why they think you owe them money, and usually - because they want to make it quick and easy to send these claims - they dont do so well enough. You dont need to be able to expklain much, as the court will decide themselves. Dont belabour this point.

7) State when it was given,a dn what the reuqired time frame shoudl be.

In your witness statement you will give the date you received the NTK
Its better if you can show they could not have gotten it to you in time, as it was not ISSUED until too late (so for example issued day 13 is too late for it to get there by day 14) , than simply delayed in post.
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helencooke01
post Wed, 6 Mar 2019 - 20:16
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QUOTE (nosferatu1001 @ Wed, 6 Mar 2019 - 14:35) *
Erm, no. SOMEONE Can prove the vehicle was not there at 1745! A signed witness statement *is evidence*
If it was NOT THERE then you cannot say it WAS!
You cannot admit it was
You cannot say it was
Yo uhave to tell the truth


Yes, I appreciate I have to tell the truth - I didn't know if I could put the onus on PCM as they stated that the car was there at 17:45 but have not provided any photos to prove it was. Sounds like I can't, and as I'm not prepared to lie, this would be better omitted.

QUOTE (nosferatu1001 @ Wed, 6 Mar 2019 - 14:35) *
8.4) Then boody say that! State the area has dropped kerbs, many other vehicles were parked in teh same manner and there was no indication that this was not permitted.


I have already included this text about dropped kerbs etc:
The area in question does not have any painted bay markings (save for one disabled marking on the other side of the road) to clearly and unequivocally define the parking bays, which would be the accepted and reasonable way to identify parking bays. The wider area in question is of modern construction using a wide range of hard landscaping materials such as block pavers, stone slabs and setts in a variety of colours and finishes. There are no raised kerbs to define restricted areas or deter parking. There are no road markings (single or double-yellow lines) that might even suggest that the area in question was not fit for parking.

The area the car was parked on is of the same colour and construction as other ‘official’ parking bays adjacent, therefore it would be reasonable to assume, in the absence of specific signage, that these areas are the same.

It is also noted that the area continues to be used as a parking bay on a regular basis by other patrons.

QUOTE (nosferatu1001 @ Wed, 6 Mar 2019 - 14:35) *
3) Yes this is enough. It basically says they have to explain why they think you owe them money, and usually - because they want to make it quick and easy to send these claims - they dont do so well enough. You dont need to be able to expklain much, as the court will decide themselves. Dont belabour this point.


Okay, thanks.

QUOTE (nosferatu1001 @ Wed, 6 Mar 2019 - 14:35) *
7) State when it was given,a dn what the reuqired time frame shoudl be.

In your witness statement you will give the date you received the NTK
Its better if you can show they could not have gotten it to you in time, as it was not ISSUED until too late (so for example issued day 13 is too late for it to get there by day 14) , than simply delayed in post.


I did not receive any NTKs - the first I knew of the issue was when I received a debt collection letter from Trace.
Should I change 7) to read:
7) It is put to the Court that the Claimant has failed to meet the conditions of the Protection of Freedoms Act (PoFA) 2012, Schedule 4, as the Notice to Keeper was not “given” at any point in time. Neither of the alleged letters were received in the post by the Defendant.

Thanks

Helen
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nosferatu1001
post Thu, 7 Mar 2019 - 09:28
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Yes. Have you sent a SAR? I cant recall. If you havent, send one. It will give you copies of the documents, and you can say "notwithstanding that no NtK was ever given, the NtK failed to meet keeper liability requiremetns of POFA in the following ways..."

OK I will try one last time

1) Was the vehicle there at 1745? Yes or No.
You have to - and this is HAVE to - accept or deny, or say why you cannot accept or deny, EVERY allegation in the PoC. So answer the question given.

If NO, say so, and work out how you will prove this.
If YES, then whats the issue?
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helencooke01
post Thu, 7 Mar 2019 - 13:37
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QUOTE (nosferatu1001 @ Thu, 7 Mar 2019 - 09:28) *
Yes. Have you sent a SAR? I cant recall. If you havent, send one. It will give you copies of the documents, and you can say "notwithstanding that no NtK was ever given, the NtK failed to meet keeper liability requiremetns of POFA in the following ways..."


Yes I did send a SAR and the 2x NTKs (which were never received) are included. They were allegedly sent within the required timeframes.
I have changed to read:

7) It is put to the Court that the Claimant has failed to meet the conditions of the Protection of Freedoms Act (PoFA) 2012, Schedule 4 as no Notice to Keeper was ever given.

QUOTE (nosferatu1001 @ Thu, 7 Mar 2019 - 09:28) *
OK I will try one last time

1) Was the vehicle there at 1745? Yes or No.
You have to - and this is HAVE to - accept or deny, or say why you cannot accept or deny, EVERY allegation in the PoC. So answer the question given.

If NO, say so, and work out how you will prove this.
If YES, then whats the issue?


YES, according to the driver, the car was parked there at 1745. This is not mentioned on the PCN or the PoC (is this the Claim paperwork?)- it just states that the car was parked in a restricted area - but I wondered whether, as PCM seem to have no proof that it WAS there at 1745, I could use it to put the burden of proof on PCM. As it seems like I can't do this, I'll remove it from the defence.
Sorry if I'm still missing your point.

Thanks

Helen
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nosferatu1001
post Thu, 7 Mar 2019 - 15:10
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In addition, check the ntk and see if they meet the requirements of pofa.

You need tO give reference to the specific part of pofa that required it was given by 14 days (no windscreen ticket) - para 9

You can't put them to proof of something you know the answer to , I don't believe.
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helencooke01
post Thu, 7 Mar 2019 - 19:52
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Thanks, will re-read POFA2012 again and see if there is anything else I can find.

Other than that I think my defence is now ready. Do you know if I should print off and post (as per the Bargepole sticky thread on MSE) or scan and email (as per the guidance being given today on MSE)?

Thanks

Helen
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nosferatu1001
post Fri, 8 Mar 2019 - 11:58
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Email is best.
Scan your signature in and append, then convert to pdf. Makes the file size smaller.
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helencooke01
post Wed, 20 Mar 2019 - 14:46
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Thanks so much for your help.

I emailed my defence over the weekend and it has now registered on the MCOL website.

Thanks

Helen
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