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barnet hospital parkingEye parking charge court case, i never parked - only waited inside the car park
chawal2
post Tue, 12 Jun 2018 - 15:02
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please can you review and comment on the final defence i prepared and shared below? should i add, edit or remove something? thanks,
---------------------

parking eye (PE) manages barnet hospital car park. car park has no barriers. on 8 feb 2017, i waited in car park for 46 minutes to get a parking space desperately - as were several other drivers. i never parked nor i got out of the car. then i left car park to park somewhere else as i was getting late for my hospital appointment. PE sent me the parking ticket which i appealed against but both PE and POPLA rejected my appeal. then i got letter before action and now court letter. i have sent AOS online. i need your help to know if my defence is robust or can i add or remove something.

PE signage:

I have got the terms and conditions of PE from POPLA Appeal document: I have typed relevant text below from PE terms and conditions signage:

*PE is authorized by landowner to operate the private car park for and on its behalf. We are not responsible for car park surface, damage or loss to and from motor vehicles or general site safety. Parking is subject to the terms and conditions that apply are set within this notice (The Parking Contract). By parking, waiting, or otherwise remaining within this private car park, you agree to comply with these terms and conditions (the Parking Contract) and are authorized to park only if you follow these correctly, including making payment where directed... and so on. If you fail to comply, you accept liability to pay the fee for unauthorised parking (the Parking Charge)
This Parking Contract shall form the entire agreement between the parties.
...more text but irrelevant to our case...

By entering this private car park, you consent, for the purpose of car park management to: capturing of photographs of vehicle and registration by APNR cameras and/or by the attendant and for sub-contractor to check compliance with the Parking Contract.
Furthermore, you consent to the processing of this data to request registered keeper details from DVLA, where the Parking Contract is not adhered to and a) enforcement is undertaken remotely via ANPR; or ...;

Parking charges incurred: a) will be notified to the registered keeper by post, where ANPR system identifies non-compliance with the Parking Contract,...;

------------------------------------
based on above, my defence is:

Background:

Defendant took his 13 year old son to Barnet Hospital for Phototherapy appointment with the nurse. Defendant entered car park and saw that many other cars were waiting to get a vacant parking bay to park car. Defendant too waited in the car park hoping to eventually find a vacant parking bay to park car and visit the hospital dermatology nurse. Defendant desperately waited inside the car along with his son but when in 46 minutes no parking bay became available, then rushed out of the car park to avoid losing the hospital appointment slot. Defendant then found a parking bay in a street and ran with his son to visit hospital nurse. Defendant did not leave car or get any parking bay to park so there was no contract formed to pay to land owner of car park or claimant.

Defence:

1. This claim should be rejected by court as no parking took place due to absence of a vacant parking spot. No contract formed between Claimant and Driver/Defendant
1. signage does not talk about grace period so waiting or grace period does not form part of contract with driver
2. signage does not mention any contract for waiting so waiting does not form terms and conditions or contract.
3. parking charge - as mentioned in signage is for parking and since no parking took place for lack of space, no contract formed or got violated so this charge is unlawful
4. PE has violated consumer contract regulations: consumer-contract-regulations-2013

In this case, a parking charge for breach of the terms and conditions (i.e. the charges of £100) would be.

The signage at this location fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The purported contract created by the signage is a ‘distance contract’ as defined in section 5 of the Regulations, and is therefore subject to the mandatory requirements set out in section 13, relating to the statutory information which must be provided by the trader.

The Regulations state, at 13(1)(a), that the information listed in Schedule 2 must be given or made available to the consumer in a clear and comprehensible manner. The Claimant’s notice fails to comply with various clauses of Schedule 2, as follows:

2© – Requirement to provide a geographical address. The Claimant’s address is given as a PO Box number.
2(k) – Requirement to provide a complaint handling policy. This is not described on the signage.
2(o) – Requirement to provide information about the right to cancel, or to state that there is no right to cancel. This is not stated on the signage.
2® – Requirement to provide information about Codes of Conduct. This does not appear on the signage.
2(x) – Requirement for access to an Alternative Dispute Resolution mechanism. Not indicated by the signage.]


5. Claimant has failed to provide any evidence that Defendant parked in the parking area. The APNR images showing the time car entered and exited car park do not prove if i parked so this parking penalty is unlawful.
6. The signage has very small letters and cannot be read unless driver comes out of the car. Without getting opportunity to park the car, it is not possible to read the signage so no contact can be formed until car was parked and since in this case car was not parked, no contract was formed.
7. The claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says;
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.


Due to these significant breaches of the Regulations, it is submitted that Defendant cannot be held contractually liable, according to the wording of the Regulations at 13 (1) “Before the consumer is bound by a distance contract, the trader must …”.

8. Defendant is yet to have knowledge of all documents provided to the court in support of the application, despite sending an email request to the claimant's website contact form in first week of June.
9. In the pre court stage the Claimant refused to provide defendant with the necessary information requested in order for defence by Defendant against the alleged debt.
They did not send following to defendant:
9a. evidence that the occupants of car left the car.
9b. the car was parked in the Private Eye Car Park
9c. there was any vacant parking bay during the time of alleged use of car park.

10. no parking space was provided by claimant and no service was used by defendant so no contract applies in this case.

11. The Claimant has at no time provided an explanation how the parking charge has been calculated, the conduct that gave rise to it or how the amount has escalated from £60 to £100. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
11.1. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.
11.2. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.
11.2.1. The Defendant denies that the driver would have agreed to pay the original demand of £60 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.
Accordingly, 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. Strict proof is required that there is a chain of contracts leading from the landowner to Parking Eye and no proof has been provided.


12. The contract displayed on the signage by Claimant was actually discharged by frustration. The contract into which Driver (defendant) may have been willing to enter with the Claimant while entering the car park, was frustrated immediately upon entering car park - by the Claimant's lack of a parking space in the car park for the whole of the time when Defendant was there. Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach.
This proves that this claim is unlawful.


13. Claimant has failed to provide following details in the claim:
a) Full particulars of the parking charges
b) Who the party was that contracted with Claimant
c) The full legal identity of the landowner
d) A full copy of the contract with the landholder that demonstrated that Claimant had their authority.
e) If the charges were based on damages for breach of contract and if so to provide justification of this sum.

The Defendant asks that the court orders Further and Better Particulars of Claim and asks leave to amend the Defence.

14. the claimant is not trading responsibly and has clearly failed to secure its parking area by allowing every car to enter its premises - irrespective of whether any parking bay is vacant or not. Claimant should be forced to put barriers in its parking are and allow a car inside only if there is a vacant parking bay. the parking contract is frustrated as soon as claimant allows a car inside when no parking bay is available.

15. 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.



16. This case can be easily distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes.
Charges cannot exist merely to punish drivers. This claimant has failed to show any comparable 'legitimate interest' to save their charge from Lord Dunedin's four tests for a penalty, which the Supreme Court Judges found was still adequate in less complex cases, such as this allegation.


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

18. It is denied that the signs used by this claimant can have created a fair or transparent contract with a driver in any event. The signs were insufficient in terms of their distribution, wording and lighting hence incapable of binding the driver, which distinguishes this case from the Beavis case:
a) Sporadic and illegible (charge not prominent nor large lettering) site/entrance signage - breach of the BPA Code of Practice and no contract formed to pay any clearly stated sum.
b) The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
c) The signage was not lit and any terms were not transparent or legible; this is an unfair contract, not agreed by the driver and contrary to the Unfair Terms in Consumer Contracts Regulations 1999.
d) No promise was made by the driver that could constitute consideration because there was no offer made nor accepted. No consideration flowed from the Claimant.
e) Absent the elements of a contract, there can be no breach of contract.

19. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.
It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious.
As such, I am keeping a note of my wasted time/costs in dealing with this matter.

20. I request the court strike out this claim for the reasons stated above, and for similar reasons cited by District Judge Hayes County Court on 17
th March 2014 Case No: 3JD08399 where a similar claim by the Claimant failed, as the Defendent was not parked (she only waited in car park like Defendent in this case) and therefore Claimant could not prove that any parking took place.

21. Claimant has failed to comply with the following documentation which specifically addresses hospital parking and are at least as authoritative as the Code of Practice: '07-03 Health Service Technical Memorandum - NHS Parking and the British Parking Association Charter for Hospital Parking'.
This failure disqualifies ParkingEye from relying on the Beavis decision

22. Appeal Court, considering Beavis, stated that the penalty could never be disengaged for a pay car park



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

This post has been edited by chawal2: Sun, 17 Jun 2018 - 19:47
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post Tue, 12 Jun 2018 - 15:02
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nosferatu1001
post Fri, 22 Jun 2018 - 07:28
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You should really aks where tehir privacy impact assessment that JUSTIFIES continuoius monitoiring by ANPR is in use, when it was conducted which must be BEFORE they installed the cameras, etc.
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chawal2
post Fri, 22 Jun 2018 - 10:59
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QUOTE (I-LOV-MONEY @ Thu, 21 Jun 2018 - 23:50) *
I am sorry for misleading you all. I checked both entrances / exits to Barnet Hospital and there are indeed large signs that state there are parking restrictions. I go there quite regularly and you go straight to your destination point rather than looking at signs.


thanks for your help!! i am grateful that you investigated and took pictures and posted here. They would have learnt lessons from previous mistakes...



QUOTE (I-LOV-MONEY @ Thu, 21 Jun 2018 - 23:50) *
I am sorry for misleading you all. I checked both entrances / exits to Barnet Hospital and there are indeed large signs that state there are parking restrictions. I go there quite regularly and you go straight to your destination point rather than looking at signs.


and can a driver really block traffic and read sign from within car? i believe one needs to get out of car to read exact contract. i am wondering that how can one read the contract and avoid issues in future.

QUOTE (nosferatu1001 @ Fri, 22 Jun 2018 - 08:28) *
You should really aks where tehir privacy impact assessment that JUSTIFIES continuoius monitoiring by ANPR is in use, when it was conducted which must be BEFORE they installed the cameras, etc.



ok i will ask.

thank you.

i am fast approaching my defence submission deadline so i hope i can get all brilliant ideas to incorporate into my defence before i submit...

QUOTE (Redivi @ Thu, 14 Jun 2018 - 13:50) *
Dear Sir

Thank You for your response regarding the contract

The authority that you have described to recover parking charges only meets the requirement of the BPA Code of Practice Para 7.1
The Code of Practice Para 7.2, however, clearly states that you must have the land-owner's written authority to recover the charges by legal action
It does not provide for any exceptions such as the name of the contracting party on the signs

I therefore require a straight Yes or No answer with no qualifications
Does your contract at Barnet Hospital include the written authority to take legal action to recover parking charges?



i got following response from PE yesterday:

We can confirm that we have authority.



i wrote following to PE:

for my court defence i also need following information:

1. I need to see your privacy impact assessment that justifies 'continuoius monitoiring by ANPR is in use',
2. when it was conducted?
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I-LOV-MONEY
post Fri, 22 Jun 2018 - 11:07
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QUOTE (chawal2 @ Fri, 22 Jun 2018 - 11:59) *
and can a driver really block traffic and read sign from within car? i believe one needs to get out of car to read exact contract. i am wondering that how can one read the contract and avoid issues in future.


The signs are quite clear once you are in a parking space. However, if you don't agree with them, I don't know if you can then leave without paying.

I know by the main entrance there is a notice saying it is a 20 minute (I think) drop-off zone, which I take to mean there is no charge, but a lot of the parking area is away from the main entrance.


--------------------
I thank you for reading this message.
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peterguk
post Fri, 22 Jun 2018 - 11:20
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QUOTE (chawal2 @ Fri, 22 Jun 2018 - 11:59) *
for my court defence i also need following information:

1. I need to see your privacy impact assessment that justifies 'continuoius monitoiring by ANPR is in use',
2. when it was conducted?

How will this help?


--------------------
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chawal2
post Fri, 22 Jun 2018 - 17:46
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QUOTE (peterguk @ Fri, 22 Jun 2018 - 12:20) *
QUOTE (chawal2 @ Fri, 22 Jun 2018 - 11:59) *
for my court defence i also need following information:

1. I need to see your privacy impact assessment that justifies 'continuoius monitoiring by ANPR is in use',
2. when it was conducted?

How will this help?


I am assuming that if PE does not have right document justifying the APNR use then I can blame PE for using unauthorised monitoring.

Please can Nosefru1001 confirm too?

sorry if i spelt your name wrong.

thanks all
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peterguk
post Fri, 22 Jun 2018 - 18:15
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QUOTE (chawal2 @ Fri, 22 Jun 2018 - 18:46) *
QUOTE (peterguk @ Fri, 22 Jun 2018 - 12:20) *
QUOTE (chawal2 @ Fri, 22 Jun 2018 - 11:59) *
for my court defence i also need following information:

1. I need to see your privacy impact assessment that justifies 'continuoius monitoiring by ANPR is in use',
2. when it was conducted?

How will this help?


I am assuming that if PE does not have right document justifying the APNR use then I can blame PE for using unauthorised monitoring.

Please can Nosefru1001 confirm too?

sorry if i spelt your name wrong.

thanks all



Do they need such a document?


--------------------
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Umkomaas
post Fri, 22 Jun 2018 - 20:20
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QUOTE
I am assuming that if PE does not have right document justifying the APNR use then I can blame PE for using unauthorised monitoring.

No idea what that's all about.

QUOTE
Please can Nosefru1001 confirm too?

sorry if i spelt your name wrong.

Check nosferatu1001's postings for correct spelling. Oops, just given it away there!
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chawal2
post Sat, 23 Jun 2018 - 19:35
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QUOTE (peterguk @ Fri, 22 Jun 2018 - 19:15) *
QUOTE (chawal2 @ Fri, 22 Jun 2018 - 18:46) *
QUOTE (peterguk @ Fri, 22 Jun 2018 - 12:20) *
QUOTE (chawal2 @ Fri, 22 Jun 2018 - 11:59) *
for my court defence i also need following information:

1. I need to see your privacy impact assessment that justifies 'continuoius monitoiring by ANPR is in use',
2. when it was conducted?

How will this help?


I am assuming that if PE does not have right document justifying the APNR use then I can blame PE for using unauthorised monitoring.

Please can Nosefru1001 confirm too?

sorry if i spelt your name wrong.

thanks all



Do they need such a document?


by 'they' do you mean court?

i am not expert here. relying upon advice from the forum experts...
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chawal2
post Sat, 23 Jun 2018 - 19:45
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QUOTE (Umkomaas @ Fri, 22 Jun 2018 - 21:20) *
QUOTE
I am assuming that if PE does not have right document justifying the APNR use then I can blame PE for using unauthorised monitoring.

No idea what that's all about.

QUOTE
Please can Nosefru1001 confirm too?

sorry if i spelt your name wrong.

Check nosferatu1001's postings for correct spelling. Oops, just given it away there!

biggrin.gif
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peterguk
post Sat, 23 Jun 2018 - 19:56
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QUOTE (chawal2 @ Sat, 23 Jun 2018 - 20:35) *
by 'they' do you mean court?

i am not expert here. relying upon advice from the forum experts...

No, i mean the PPC.

Where did you see a requirement for a "privacy impact assessment", and where did you see that if such a document exsits that you are entitled to see it?

This post has been edited by peterguk: Sat, 23 Jun 2018 - 19:59


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chawal2
post Sat, 23 Jun 2018 - 20:44
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QUOTE (peterguk @ Sat, 23 Jun 2018 - 20:56) *
QUOTE (chawal2 @ Sat, 23 Jun 2018 - 20:35) *
by 'they' do you mean court?

i am not expert here. relying upon advice from the forum experts...

No, i mean the PPC.

Where did you see a requirement for a "privacy impact assessment", and where did you see that if such a document exsits that you are entitled to see it?

please read this chat so that you will know how i learnt about it...
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nosferatu1001
post Sat, 23 Jun 2018 - 22:52
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My understanding is the ico requires you to justify the use of ANPR, especially on hospital grounds
It's discussed heavily on MSE
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chawal2
post Mon, 25 Jun 2018 - 15:03
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QUOTE (nosferatu1001 @ Sat, 23 Jun 2018 - 23:52) *
My understanding is the ico requires you to justify the use of ANPR, especially on hospital grounds
It's discussed heavily on MSE


i did some research as i need to finalise my defence tonight and share here for review.

https://icosearch.ico.org.uk/s/search.html?...rofile=_default

but i cannot find any guidelines which will support my defence point.

i am guessing that i can just write above point mentioned by you in defence and prepare for evidence later.

thanks...
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chawal2
post Tue, 26 Jun 2018 - 10:16
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hi experts, i am trying to fill my defence online. but it is only allowing 122 lines for defence summary. so do i have to shorten it or do you have any tips i can use - to keep original size of defence as posted on top of this thread? i will appreciate your help... thanks in advance...
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Redivi
post Tue, 26 Jun 2018 - 10:36
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Don't fill in the defence online

As you say, it doesn't have enough space for anything but the most basic defence
ParkingEye stresses that defendants wanting to add to defences should pay £255 for a court order so make sure everything is there

Its reply will run to 65 or so pages and their evidence pack to 120+

Type it in Word in 12 point Times New Roman with 1.5 lines spacing

Scan in your signature and convert to pdf

Then email it to the Court
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chawal2
post Tue, 26 Jun 2018 - 11:00
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QUOTE (Redivi @ Tue, 26 Jun 2018 - 11:36) *
Don't fill in the defence online

As you say, it doesn't have enough space for anything but the most basic defence
ParkingEye stresses that defendants wanting to add to defences should pay £255 for a court order so make sure everything is there

Its reply will run to 65 or so pages and their evidence pack to 120+

Type it in Word in 12 point Times New Roman with 1.5 lines spacing

Scan in your signature and convert to pdf

Then email it to the Court


many thanks Redivi...

please let me know in case you think anything else should be there... do u mean that if i add some extra point to defence statement later, i will be charged £255?

horrifying approach from PE.

am i right that i need to fill online defence form as normal, just not write summary online - i can refer in summary section to that email sent to court.

i am worried that court may not link email with my online defence form.
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Redivi
post Tue, 26 Jun 2018 - 11:23
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DO NOT PUT ANYTHING IN THE DEFENCE BOX

It will not only fail to link to the email but there's a very good chance that it will prevent the acceptance of your emailed defence

Do u mean that if i add some extra point to defence statement later, i will be charged £255?

Yes.

After the court has sent a copy of the defence to ParkingEye, it can only be added to with the permission of the court

This costs £255 for the court order if you have a hearing to request permission
It's only £100 if you ask for the court to grant the order without a hearing
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chawal2
post Tue, 26 Jun 2018 - 11:33
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QUOTE (Redivi @ Tue, 26 Jun 2018 - 12:23) *
DO NOT PUT ANYTHING IN THE DEFENCE BOX

It will not only fail to link to the email but there's a very good chance that it will prevent the acceptance of your emailed defence

Do u mean that if i add some extra point to defence statement later, i will be charged £255?

Yes.

After the court has sent a copy of the defence to ParkingEye, it can only be added to with the permission of the court

This costs £255 for the court order if you have a hearing to request permission
It's only £100 if you ask for the court to grant the order without a hearing


Ok thanks Redivi.

So:
1. i will email PDF to court with claim number and MCOL account number as subject of email.
2. leave defence box blank in the online defence form.



thanks, you all volunteers are great
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Jlc
post Tue, 26 Jun 2018 - 11:34
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QUOTE (chawal2 @ Tue, 26 Jun 2018 - 12:00) *
do u mean that if i add some extra point to defence statement later, i will be charged £255?

Yes, so it needs to be complete & correct and submitted before the deadline.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information

Private Parking - remember, they just want your money and will say almost anything to get it.
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Redivi
post Tue, 26 Jun 2018 - 11:41
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Claim number and title
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