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Napier / BW Legal - Court Claim, Court Claim recieved for our Company
djsky
post Thu, 17 Jan 2019 - 14:50
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[attachment=60999:CCClaim1_Redacted.jpg]Hello,

Received a Fixed charge Notice, notice to keeper, etc etc, then BW Legal letters, final demands, and now a County Court Claim.

We did not / have not responded to anything as yet, and intend to acknowledge service with the court.

I have attached a copy of the court claim.

The Vehicle is registered to our company.

I am the company Director and Secretary, but I was not the driver of the vehicle at the time of the alledged offence.

Any advice as to how best to defend this would be greatly appreciated.

This post has been edited by djsky: Thu, 17 Jan 2019 - 18:18
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post Thu, 17 Jan 2019 - 14:50
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djsky
post Sun, 20 Jan 2019 - 10:22
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I’ve seen some posts on here talking about a part 18 request. Is that something I should do?



Also, it’s just occurred to me that if a parking “ticket” was issued, the driver surely would have noticed a “Ticket” on the windscreen, but then the dates of the NTK is pretty damn soon after the offence, so if the driver had bought a ticket (perhaps outside the window of observation) displayed it, and then continued on their journey, they would have then simply binned the displayed ticket thinking they’d done everything correctly?
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nosferatu1001
post Sun, 20 Jan 2019 - 11:33
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No, that's absolutely ancient.
Just send the ppc a sar for all your personal data

Then you send a separate request for all documents they will rely upon such as... as part of their obligations under the pre action protocol and the overriding objective.
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djsky
post Mon, 21 Jan 2019 - 06:56
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QUOTE (nosferatu1001 @ Sun, 20 Jan 2019 - 11:33) *
No, that's absolutely ancient.
Just send the ppc a sar for all your personal data

Then you send a separate request for all documents they will rely upon such as... as part of their obligations under the pre action protocol and the overriding objective.


Do I request these from Napier Parking, or BW Legal?
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ostell
post Mon, 21 Jan 2019 - 08:14
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SAR to Napier, request for all the documents they intend tyo use to BWL
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djsky
post Tue, 22 Jan 2019 - 07:39
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Please can I have opinions on these?

SAR:

Subject access request (Data Protection Act 2018 / General Data Protection Regulations (GDPR))
With reference to Court Claim No. xxxxxx against the above defendant for a Fixed Charge Notice Dated xxxfor VRN xxxxxx
Please supply the data that we, as the keeper of the aforementioned vehicle, are entitled to under data protection law.
I request all data held and processed, including but not limited to the following:
- All the photos taken on the day
- All human intervention notes
- All electronic data including automated decisions to generate letters
- A close up of the sign on the day with the car parked/empty in the same view
- All photos relating to this case
- Copies of the FCN and all letters sent

This is a Subject Access Request but also an Objection to Processing and a formal request to Restrict Data Processing.
My identity can be verified from public data available on companies house. It may be helpful for you to know that data protection law requires you to respond to a request for data within one calendar month.
If you do not normally deal with these requests, please pass this letter to your Data Protection Officer, or relevant staff member. If you need advice on dealing with this request, the Information Commissioner’s Office can assist you. Its website is ico.org.uk or it can be contacted on 0303 123 1113.


Pre Action Protocol Letter:

Dear Sirs,
I am in receipt of your County Court Claim Form – xxxxxx
The claim form contains insufficient detail of the claim and fails to provide copies of evidence you place reliance upon.
You must know that on 01 October 2017 a new protocol is applicable to debt claims. Since proceedings have not yet been issued, the new protocol clearly applies and must be complied with.
Your letter lacks specificity and breaches both the requirements of the previously applicable Practice Direction - Pre-Action Conduct (paragraphs 6c and 6c and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1a-d, 5.1 and 5.2.
Please treat this letter as a formal request for all of the documents / information that the protocol now requires you to provide. You must not issue proceedings without complying with that protocol. I reserve the right to draw any failure of the Claimant to comply with the protocol to the attention of the court and to ask the court to stay the claim and order you to comply with its pre-action obligations, and when costs come to be considered.
As litigation department you must surely be familiar with the requirements of both the Practice Direction applicable pre-1 October and the Protocol which applies thereafter (and you, as a serial litigator of small claims, should likewise be aware of them). As you must know, the Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time.
Nobody is immune from the requirements and obligations of the Practice Direction and now the Protocol.



I require you to comply with its obligations by sending me the following information/documents:
1. An explanation of the cause of action
2. Whether they are pursuing me as driver or keeper
3. Whether they are relying on the provisions of Schedule 4 of POFA 2012
4. What the details of the claim are; where it is claimed the vehicle was parked, for how long, whether a Notice was attached to the windscreen of the vehicle at the time, how the monies being claimed arose and have been calculated
5. Is the claim for a contractual breach? If so, what is the date of the agreement? The names of the parties to it and provide to me a copy of that contract.
6. Is the claim for trespass? If so, provide details.
7. Provide me a copy of the contract with the landowner under which they assert authority to bring the claim, as required by the IPC code of practice section B, clause 1.1 establishing yourself as the creditor
8. A plan showing where any signs were displayed
9. Details of the signs displayed (content, size of sign, size of font, height at which displayed)
10. Provide details of the original charge, and detail any interest and administrative or other charges added
If you do not provide me with this information then I put you on notice that I will be asking the court to impose sanctions on you and to order a stay of the proceedings, pursuant to paragraphs 13 ,15b and c and 16 of the Practice Direction, as referred to in paragraph 7.2 of the Protocol.
Until you have complied with your obligations and provided this information, I am unable to respond properly to the claim and consider our position in relation to it. It is a waste of costs and court time for you to issue proceedings and I will seek an immediate stay pursuant to paragraph 15b of the Practice Direction and an order that this information is provided.

This post has been edited by djsky: Tue, 22 Jan 2019 - 07:41
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nosferatu1001
post Tue, 22 Jan 2019 - 12:41
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- A close up of the sign on the day with the car parked/empty in the same view

how is that personal data?
Include V5c copy.
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cabbyman
post Tue, 22 Jan 2019 - 14:21
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QUOTE (djsky @ Thu, 17 Jan 2019 - 14:50) *
The Vehicle is registered to our company.

I am the company Director and Secretary, but I was not the driver of the vehicle at the time of the alledged offence.


I wonder if the above has been missed with all the discussion around 'personal data,' and if this changes any of the advice offered?

This post has been edited by cabbyman: Tue, 22 Jan 2019 - 14:22


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djsky
post Sun, 3 Feb 2019 - 11:00
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Hello all.

Here's my first draft at defence. I couldn't find many posts relating to observation period, but I've done my best. I'm no legal eagle, so any help would be greatly appreciated.


It is admitted that the defendant, company name, is the registered keeper of the vehicle.

I represent company name as a company director.

It is denied that any indemnity costs are owed and any debt is denied in its entirety.

I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.

No evidence has been supplied by this claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. I choose to defend this claim as the registered keeper, as is my right.

It is denied that the Claimant has authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner.

Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.

It is denied that there was any 'relevant obligation' or 'relevant contract' relating to any single parking event.

In the pre court stage the Claimant’s solicitor refused to respond to a part 18 request and provide me with the necessary information I requested in order to defend against the alleged debt.

No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

The BPA Code of Practice (CoP) makes it mandatory for operators to allow grace periods at the start and end of parking, before enforcement action can be taken. The CoP states:

“13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go.”

“13.4 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.”

For the avoidance of doubt, the second 'grace' period of at least ten minutes (not a maximum, but a minimum) is in addition to the separate, first grace/observation period that must be allowed for the time taken to arrive, find a parking bay, lock the car, and go over to any machine and/or observe the signage terms, before paying for or obtaining a permit.

Kelvin Reynolds of the BPA says there is a difference between ‘grace’ periods and ‘observation’ periods in parking and that good practice allows for this:

“An observation period is the time when an enforcement officer should be able to determine what the motorist intends to do once in the car park. The BPA’s guidance specifically says that there must be sufficient time for the motorist to park their car, observe the signs, decide whether they want to comply with the operator’s conditions and either drive away or pay for a ticket.”

“No time limit is specified. This is because it might take one person five minutes, but another person ten minutes depending on various factors, not limited to disability.”

The original Fixed Charge Notice clearly demonstrates that a grace period of only 1 minute and 9 seconds was allowed for the driver to observe the relevant signs before returning to the vehicle without agreeing to the terms of parking.

The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimant claims a sum of £90 as a ‘parking charge’ (for which liability is denied) plus The Particulars of Claim include £60 that the claimant has presented as debt recovery costs. The claimant's solicitor is well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims court. The defendant also has the reasonable belief that the charges have not been invoiced and/or paid. The defendant also has a good faith belief that due to the sparse particulars that the £60 claimed for filing the claim has not been incurred. This appears to be an attempt at double recovery as a way to inflate the value of the claim. In any event the protection of freedoms act is clear that a vehicle Keeper, even if they are liable for the charge which is denied, would only be liable for the amount of the penalty charge notice, and no further costs.

The defendant invites the court to strike out the claim as disclosing no cause of action. In the alternative, the defendant requests the court to order the claimant to provide further and better particulars of claim and permit the defendant to amend his defence as appropriate.

Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief

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djsky
post Tue, 5 Feb 2019 - 19:24
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Any advice before I send this?
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nosferatu1001
post Wed, 6 Feb 2019 - 11:00
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WHy the rush?

Hav eyo ulooked over on MSE forum as well, and posted there?
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djsky
post Wed, 13 Mar 2019 - 17:55
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It would appear now that Napier wish to take this to court, as I have received a directions questionnaire.

Any advice on my further actions?

Thanks.
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djsky
post Fri, 22 Mar 2019 - 15:29
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I’ve now had a letter from BW Legal in response to my defence. Saying that as much of my defence is copy and pasted it is nonsensical.

They also now claim that their parking attendant’s notes indicate that the vehicle did not exit the car park until 30 minutes later.... this I find hard to believe!

They also included a number of photos - however NONE of them show a penalty notice affixed to the windscreen of the vehicle.... this I also find quite odd.

They also remark on my non-response until now - partly my fault, but then I wasn’t provided the originals by my employees who open the post in the office until the legal stuff started arriving.

How do I stand now?
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ManxRed
post Fri, 22 Mar 2019 - 15:36
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I think they're flustered!


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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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Glacier2
post Fri, 22 Mar 2019 - 18:00
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Crying about templates, cut and paste is the last throw of the dying wasp.
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djsky
post Tue, 23 Jul 2019 - 19:06
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Had a few letters from the court, simply saying that it has been allocated to the small claims track, and then to another court local to me... but that was back in March.... obviously I listed some dates that I would be unavailable to attend within six months of February.... but we’re now six months on and still not had a court date through.

What happens if they now give me a court date that I and/or my witness cannot attend?

Is there a time limit where by the court must issue a date? In the past I’ve heard of things being struck out after so long.

Any ideas? Should I call the court and ask for an update?
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nosferatu1001
post Tue, 23 Jul 2019 - 19:26
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No time limit. Their choice

Provide them with a new list seems the obvious option
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Glacier2
post Tue, 23 Jul 2019 - 19:33
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I am surprised you didn't get a court date when it was transferred to your local court.
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ostell
post Wed, 24 Jul 2019 - 08:40
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Phone up your local court with the claim number as reference and see what is happening
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