Examples where "no keeper liability for PCN at train station" defence succeeded in County Court Claim ? Options

[CrowClan]

Hi all. This is my first post and apologies in advance if I transgress any forum rules. I would like to seek advice from forum members for PCNs issued at Cambridge railway station by NCP.
My wife is being chased by NCP for various Parking Charge Notices they issued, some dating back 3 years. She is the registered keeper but was never the driver. I had ignored their letters and it had gone quiet then I received a BW Legal letter with the list of PCNs and claiming payment of each PCN - these vary from £85+£60 to £100+$60 each, with the £60 being their claim for legal fees. For information, the car park is pay and display, and the daily charge is around £11-12 pounds per day (it has increased over the past 3 years).

I replied on behalf of the Registered Keeper stating my belief that as a railway car park "the land is subject to railway bylaws and is not relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012 (ref POPLA case Steve Macallan 6062356150). As I am the registered keeper I am not legally liable as this Act does not apply on this land. I ask the Operator for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail authorities that this land is not already covered by byelaws. Railway land, being governed by Byelaws, is not relevant land and Keeper Liability under POFA does not apply, and therefore National Car Parks are unable to pursue the registered keeper in lieu of the driver’s details."

BW Legal did not reply to my letter, then I received a Claim Form in the County Court Business Centre at Northampton, which I have acknowledged and now need to prepare a defence.

Can anyone advise point me to previous examples that I can read up on and take inputs from to prepare my defence, then I will draft a defence letter and seek further feedback ? From my research so far, I believe the following to be important to include: railway byelaws and "not relevant land"; challenge the addition of £60 fees onto each PCN amount; the fact that as a pay and display car park ParkingEye vs Beavis should not apply and the potential loss to NCP cannot be greater than the cost of a day's parking, so imposing a charge of £85-100 does not seem justified. I'm very grateful in advance for your insights and advice.

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[Sheffield Dave]

Who is the registered keeper - you or your wife? And is the RK also the defendant? Be vary careful when dealing with court matters - the defendant themselves have to submit defences and similar paperwork and attend court (although of course other people can help draft the paperwork).

Arguing that Beavis doesn't apply to P&D car parks is a long shot - don't be surprised if it gets shot down.

On the claim form, what is the £60 add-on described as? And on the letter before Claim how was it described?

How many tickets has the driver accrued? Over what period? Is there any reasonable reason for accruing them?

[ostell]

Search for the Excel v Wilkinson case where the £60 was found to be an abuse of process

[Gary Bloke]

Is this a "Penalty Charge" or a "Parking Charge" notice? If the former, then NCP are using Byelaws to manage the car park. If the latter, then NCP are using contract law.

You mention County Court - so that implies they are using contract law, so they are claiming civil damages for an alleged breach of the parking contract. (If they were using Byelaws they would be offering you immunity from criminal prosecution for an alleged breach of the Byelaws in return for payment of £100).

Byelaws apply at station car parks even if NCP chooses not to use them to manage the parking. This means that there is no keeper liability here. DO NOT IDENTIFY THE DRIVER - you are under no legal obligation to do so.

If they do not know who the driver was - and you do not tell them - they are extremely unlikely to win in the County Court.

I agree that arguing Beavis vs Butthead does not apply is tempting, but the finer points of this argument may be lost on the judge, and in any case you don't need this argument because there is no keeper liability on railway land.

[CrowClan]

Thank you all for your responses. Here is additional information. There are 8 Parking Charge Notices dating from July 2019 to Jan 2020. There is no good reason for non-payment, simply human fault. This was during a daily commuting period, when on these few occasions the payment was not made, due to oversight eg running for a train and then forgetting to pay via an App, or not having sufficient coins to pay in cash. There is no mechanism to pay a missed payment afterwards and the App does not accept to make a payment if the date has already passed. Therefore it is not possible to pay NCP their missing daily charge of £11-12 and the next step is the PCN. The PCNs were issued I believe via a notice stuck on the windscreen, or in some cases via letter when an ANPR camera system was installed. On 6 PCNs the charge is £75 plus £60 and on 2 it is £100 + £60, plus Statutory Interest pursuant to section 69 of County Courts Act 1984 at a rate of 8% pa from 30/7/2019 to 4/10/2021. The £480 recovery cost is claimed as set out in Terms and Conditions and the ATA AoS Code of Practice. NCP are also claiming £80 court fee and another £80 Legal Representative fee.

The RK is the wife who has been sent the correspondence and Letter of Claim. She was never the driver on any occasion.

I've researched the Excel vs Wilkonson case (thanks for the recommendation) and I found suggestions to assert Double Recovery rather than Abuse of Process because a different case for £160 established that a judge could allow the Claimant to appeal and have their Claim reinstated on the grounds the court didn't permit an "unlimited amount" to be claimed, but did not preclude a higher amount being claimed, and that Abuse of Process was perhaps being applied in too draconian a way.

Basically I would like to assemble a robust defence that would ideally persuade NCP to withdraw their Claim, or accept a reasonable counter offer (eg the actual cost of 8 x daily parking fees), or at least an amount a lot less than the PCN + Recovery Fees + Interest. I understand the principles that say rail bylaws take precedence but I also have experience from an entirely different matter an employment tribunal case was lost that the barrister said was cut and dried but was lost because the opposing barrister has a finer and more assured grasp of the legal arguments. Are there examples of cases of PCNs at Rail Stations that have been successfully defended ?

Thanks again in advance for all responses

[Sheffield Dave]

Just to clarify - have they started a single claim which covers all 8 tickets, or are there multiple claims? For the former, at what point did they consolidate the claim - e.g. multiple sets of debt collector letters but a single Letter before Claim?

At any point in any of the paperwork did they in any way describe what the £60 amounts were for - e.g. "damages" or "debt recovery costs" or whatever? And if so, did the description change at any point?

[CrowClan]

BW Legal first wrote on 30 April 2021 that they were instructed by NCP and Trace Debt Recovery UK Ltd in relation to 8 unpaid Parking Charge Notices in an attached schedule. The balance of £1,130 was stated to include £480 in respect of unpaid PCNs and includes debt recovery costs of £480. They claim their displayed terms and conditions stipulate that additional charges would apply in the event of an unpaid PCN which includes the debt recovery costs above. I believe they have been consistent in using the term "debt recovery costs"

BW Legal followed up with a Letter of Claim on 30 June for the 8 unpaid parking charges, setting out £1130 for Principal Debt and Debt Recovery cost, plus £132.01 estimated interest, plus £80 estimated court fee plus £80 estimated Solicitors cost. Under Particulars of Debt they describe only the PCNs and reference to breaching the terms of parking. No reference to the car parking fee of £11-12 that they actually did not receive. I replied to that Letter of Claim asserting the railway byelaw provision and BW Legal ignored my reasoning and followed up with notice of a County Court Claim.

[DWMB2]

Just to be clear, when you say "I replied", do you mean you, or your wife? If your wife is the defendant, then any correspondence with BW Legal or the parking company should be in her name.

[Gary Bloke]

Best defence, IMO, is that there's no keeper liability, only the driver could be liable and they cannot prove who the driver was.

Having made that the main defence, you could also *try* the argument that PE vs Beavis does not apply. This is a station car park, NCP do not rely only on parking charge notices for their income (check that) and the purpose of the car park is not to serve shops. Hence there is no commercial justification for a parking charge notice in excess of a GPEOL. (There are a few shops opposite, but the car park is primarily there to serve the train station). So PE vs Beavis does not apply in this situation. Therefore, any claim for damages due to alleged breach of a parking contract should still be a Genuine Pre-Estimate of Loss.

[CrowClan]

Thank you both for the further responses. To clarify, all correspondence with BW Legal has been in the RK's name, not mine.
I will draft a defence letter and post for feedback - in it I will include the railway byelaws point, the "not a genuine pre-estimate of loss", double recovery (ie the £60 debt recovery fee)

It would be really helpful if anyone has additional case examples of where the railway byelaws defence and "not GPEOL" were successfully defended that i could refer to in my letter.

Thanks again for everyone's assistance !

[The Rookie]

Do you still have one of the original notices, if you do and it claims to be a penalty charge then NCP are trying to 'switch horses mid race' by it suddenly becoming a parking charge once a penalty charge could no longer be progressed. The DVLA KADOE contract prohibits this and NCP may be persuaded to discontinue rather than risk their DVLA access.

If you don't have one, then an immediate Subject Access Request to NCP for the data in your wife's name will reveal what they originally claimed. You should also be able to get one via a CPR request to BW Legal and that should arrive quicker. That NCP and BWL now call them parking charges is to be expected, but what they were originally entitled is what matters.

[Gary Bloke]

AFAIK nobody has tried the GPEOL defence at station car parks. Would be fantastic if this could be tested for the first time. If you're going down this route, there would need to be detailed analysis of the 2015 Supreme Court judgement - I think the judges made clear that their decision was specific to the Beavis situation. Those words would need to be quoted verbatim to underline that their decision should not apply at station car parks. Also, the PE vs Beavis situation would need to be described and contrasted to this situation (it was a free car park, PE only source of income was the parking fines. Car park served shops. Hence the judges decided that there was a "commercial justification" for maintaining a turnover of cars in the car park by having PCNs larger than a GPEOL. In this case - not a free car park so NCP get paid a fee for their management services, they are not solely dependent on the PCNs; car park serves station not shops. So no commercial justification for PCNs > GPEOL).

[CrowClan]

I don't believe we have copies of original invoices, but I am fairly sure they were titled Parking Charge Notices, not Penalty Charge Notices. It is pretty depressing that these car park operators can turn a missed £12 parking payment into a debt of £160 plus interest, without any sanction or opposition in law.

What is a CPR request please ?


I just saw this quote in another post today on Pepipoo.

"the only point to mentioning pofa2012 would be if they're adding debt collector charges that the keeper cannot be liable for, because the keeper is only liable for the amount on the notice to keeper, eg usually £100" Is that an accurate point, that the RK may be liable for the PCN - accepting that I still need to test the rail byelaws defence - but not for eth £60 per PCN "debt recovery fee" ? If true that would knock £480 off the claim straightaway.

[nosferatu1001]

CPR part 31.14. Google it. Do the sar immediately.

How did they get to over 1100 when it was £480 pcn plus £480 debt?

[Sheffield Dave]

If the judge agrees (on the balance of probabilities based on witness evidence and exhibits from both sides) that the defendant was not the driver, then all the following applies:

1) if the defence can show that byelaws applied to the site, then the defendant can't be made liable for any debt the driver may have incurred;
2) otherwise, if the NtK didn't comply with POFA 2012, then again the defendant isn't liable;
3) otherwise, the defendant is potentially liable for the amount shown on the NtK (plus any court fees) but not for any fake £60 add-ons. Whether the defendant is liable then boils down to whether the driver is liable - i.e. entered a contract then triggered a clause which made them liable to cough up £100 or whatever.

If instead the judge decides the defendant was the driver, then (3) applies, except that the £60 could apply too - the driver would have to show why that fee is a scam.

[CrowClan]

The amount claimed is £650 for 8 x PCNs plus £480 debt recovery costs (at £60 per PCN) plus interest, court fee and legal representative fee.

I have written to BW Legal requiring copies of the original PCNs and invoices, copy of contract to operate parking services and signage. They state the land is privately owned but do not state that NCP own the car par around Cambridge Station. I have also contacted National Rail and Cambridge Station to enquire who owns the land and where the byelaws apply but each organisation has referred me to the other. I may have to make a Legal Search to Land Registry. I will be at teh train station tomorrow and I will hunt around the signs there to see if I can see mention of byelaws.

I also found this case reference on Parking Prankster where a case was dismissed because the Claim (Excel vs Lamoureux) was asserted to not be relying on POFA 2012 and the judge dismissed because the Claimant could not prove the registered keeper was the driver on the day.
http://nebula.wsimg.com/ab774da5f40c5d7082...p;alloworigin=1

[nosferatu1001]

You'd stated 480above, now 650.
650 doesn't sound right for 8 pcn. That's 81,50 per pcn. Are you ABSOLUTELY SURE on the amount?

£7 to get land ownership

[CrowClan]

Apologies for not being clearer. There are 6 PCNs at £75 each plus 2 at £100 = £650. Then plus 8 x £60 debt recovery fee = £480. Total is £1,130

[The Rookie]

I don't believe we have copies of original invoices, but I am fairly sure they were titled Parking Charge Notices, not Penalty Charge Notices. It is pretty depressing that these car park operators can turn a missed £12 parking payment into a debt of £160 plus interest, without any sanction or opposition in law.

The ‘law’ as you put it equated them to council parking tickets (parking eye v Beavis), where the exact same transgressions would have seen penalty charges to a similar amount issued. So really your complaint isn’t well founded really I’d suggest?

It is also what the contractual signage told the driver they agreed to pay if they failed to pay, ignoring the signs is a bad idea.

[CrowClan]

Well, I have obtained information about the Title Register for the car park at Cambridge Station but it does not contain an actual Plan though it looks like it does encompass the car park. The owner is Network Rail, so I will hunt tomorrow to see if it has byelaw notices.
I will also read PE vs Beavis in more detail as I had not heard before that the PCN was equated to a Council Parking Ticket. The Parking Charge is a commercial matter I believe whilst the Council Parking Ticket is a straightforward civil offence if not paid. Also, as this is a pay and display car park the contract is surely based around a car park service in return for a consideration of tariff payment by the driver. I would happily have paid the daily parking charge in arrears if there was a mechanism to do so.