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Rule1949
Hi

I really do hope that I will find some help with my problem on this site.

In April 2017 I received a letter from Britannia Parking concerning “failure to make a valid payment” at one of the car parks they operate in the south west

I immediately wrote to them , heading my letter “ for information only” confirming that I had visited that site ( I didn’t say who was with me or who was driving the vehicle concerned ); on the stated day; I advised them of the approximate time of arrival and departure and finally provided them with a copy of the debit card transaction showing that 6 hours of parking had been purchased (more than I had parked for). I was even able to tell them which machine had been used for the transaction. I finished my letter with the following “… please advise me of what went wrong. Once I have all the information, I will decide whether or no to appeal your notice.”

The response from Britannia Parking started with “Thank you for your appeal received on xx April 2017”

The letter then went on to give the cause for PCN – First two letters of registration number were entered incorrectly (they were the first two letters from my wife’s car reg). They did offer a much reduced amount if paid within 14 days.

They then confirmed that I had reached the end of their internal appeals procedure and they provided me with a POPLA reference number. I did not appeal to POPLA AS I had not, as far as I was concerned, appealed to Britannia

I have had various letters from DRP and Zenith for various amounts from £100 to £145 and most recently a LETTER OF CLAIM from bwlegal for £145 ( £85 + additional costs of £60) advising that they have been instructed by Britannia to commence legal action if payment is made by 1st February. I did email bwlegal suggesting that they ask their client why in 2017 Britannia declined my appeal BEFORE it was made. I’m not expecting a reply.


Any advice would be most welcome.




nosferatu1001
Your "trick" was never going to work
You missed a chance to kill this at POPLA

Your response to the LBC is insufficient, and you need to formulate a real response, firstly denying the debt, stating that Britannia have proof payment was made, and any error in thier machines recording ot eh VRM - whether a trivial mistake by the user or otherwise - was entirely within their power to rectify. As payment was fully made, to suggest any error recorded by their machine is worthy of £160 is false, clearly a penalty and Beavis supports that this penalty cannot be enforced.
As their clients claim has no chance of success, as the ruling at the Court of Appeal has stated as such, and the Supreme Court did not overturn this ruling in the Beavis case, they should cease the harassment.
ostell
So you've missed the point that the NTK is not compliant with the requirements of POFA to be able to hold the keeper liable. Have you told them who was driving. Have you mentioned this to BWL?
Morrowitz
QUOTE (ostell @ Tue, 8 Jan 2019 - 13:30) *
So you've missed the point that the NTK is not compliant with the requirements of POFA to be able to hold the keeper liable. Have you told them who was driving. Have you mentioned this to BWL?


Hi ostell. Which part of the NTK is not compliant?

Edit:
Is it Section 9(2)(f) of the regs which states
The notice must
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;


The notice does not at any point say that you (as the keeper) can be made liable for the unpaid amount.
cabbyman
You need to go through PoFA sched 4 and tick off all those points that are not complied with. The wording must be precise.

You need to include all the points that Nosferatu mentioned.

Draft your response and post it here for checking and fine-tuning.

It's a shame because the right approach would have killed this at POPLA, possibly before POPLA!

Highly unlikely that BWL will clarify your 'non-appeal.' That's what happens when you try to work to 1949 rules.
Rule1949
Well it’s been an interesting week.
Firstly thank you for the responses.

On Wednesday 9th January I inadvertently picked up a phone call from bwlegal. Perhaps I should have put the phone down immediately, but I didn’t.

The caller did go through some ID questions before continuing ( unlike the bwlegal person who called at 8.40 am on Christmas Eve. They asked no ID questions. That was a very short call!

During the ID questions I was able get my mobile into record mode and with the home phone on speaker the rest of the conversation was recorded.

I asked the reason for the call as their 28 December letter gave me until January 31st to either make a payment or make a response as, in the absence of either of these actions, bwlegal had been instructed to commence legal action by way of a claim in the County Court.

The caller seemed a little unsure whether this matter was about not making a payment or not making a valid payment. The caller ended up by telling me I hadn’t made a payment.

I then asked whether the action was being taken against me as the driver or registered keeper. On 3 occasions the caller said as registered keeper.

In their letter dated 12th December I was advised that it (my account balance) had been sent to bwlegal, to whom all future contact and correspondence should be referred.

The caller then went on to say that Britannia had requested them to chase me concerning the outstanding amount. If the whole matter had been transferred to bwlegaI why were they acting at the request of Britannia? I questioned again why they were chasing me as their 28 December letter clearly gave me until 1st February. The caller then went on to say that although I did have that time, during which I could / should seek independent FREE legal advice, in the meantime they would continue to contact me, as and when, by phone, letter or email, and on each occasion further costs would accrue. That’s when I got close to letting rip ( I didn’t). I advised the caller that I was recording the conversation – the caller told me that they were doing likewise. I then advised them that I did not need / want any contact from them and if they did contact me I would consider it harassment. It was clear that the caller understood this.

Following that call I received further emails from bwlegal on 10th & 11th January !!!!!!

Just as an aside. If you look at the printer reference on the Britannia and bwlegal letters of 12th December they were both printed on the same BWL printer!


For my next step I will be writing a better response to BWLegal as per the advice of nosferatu1001 and cabbyman. I’ll post here as soon as it’s drafted.

Should I mention the harassment in the letter?

Do I need to send a SAR to Britannia?

Finally, If I want to get a reply from bwlegal I have to include the following info :
• Our Reference "Txxxxxx"
• your Full Name; and
• date of birth; and
• address including postcode
• contact number; and
• how we can help
The only thing I have a question over is why DOB ??

These are the letters I have received from BWLegal





nosferatu1001
You dont need th eDOB. THey have no need for this information.

Yes send a SAR to Britannia
ensure it ONLY asks for data on you; signs, contracts etc are NOT covered by A SAR and must NOT be asked for.
Rule1949
Thanks Noseferatu1001..

Just another thought. As this Business has now been ( allegedly ) transferred to Bwlegal should I also send them a SAR ??
cabbyman
You merely have to write in the standard, accepted format that you would use in any business letter:

Name, address, reference.

Block their number. Next time they phone, as soon as it becomes apparent who it is, put the phone down. They are professional scammers. There is no way your clever tricks are going to win over the phone whereas they may have gleaned a lot of useful information and statements that you inadvertently let slip.

Stick to doing EVERYTHING in writing.
nosferatu1001
No, you send the sar to Britannia as told
They're the original data controller
You don't know if they've already sent everything over. In fact I'm pretty certain they haven't done.
Rule1949
Oh how I wish we hadn’t gone to Plymouth !!
To update I will be making more than one post so as to keep things separate for guidance / advice.

1. SAR sent to Britannia. Their robotic reply was

Dear Sir/Madam,
We have received your Subject Access Request, under ICO guidelines we have one calendar month to respond.
Please be aware we will send a copy of all personal data we hold only. If you have made a request for any additional information which does not qualify as personal data, please see below.
YOU’RE REQUEST FOR ADDITIONAL INFORMATION
• Landowner agreement - You are not entitled to business sensitive information, it will only be supplied at court, as evidence and not before.
• Contract with the driver - The contract is on the signage in the car park. A copy of the signage will be provided as evidence at court.
• Machine reports - You are not entitled to transactions which do not relate to you, you will be provided with your transaction only. We are under no obligation to provide you with anything further.
• Picture packs - A copy of the signage will be provided as evidence at court.

Your SAR request is free, however please be aware we are able to charge for additional copies and any requests for information which does not qualify as personal data. ICO guidelines advise we are able to charge a reasonable administration fee, which is £10.
Please send a cheque payable to Britannia Parking to the following address: Data Protection Officer, County Gates House, 7th Floor, 300 Poole Road, Poole, BH12 1AZ.
Include a list of the additional information you require and the PCN number/s. Once the cheque has cleared we will action your request. We will only send additional information which is not business sensitive.
Please refer to the ICO website for further information: https://ico.org.uk/your-data-matters/your-right-of-access/
If you do not wish to pay £10, we are under no obligation to provide you with the information, your only options is to wait until this matter progresses to court, when it will be adduced as evidence.
Once you are in receipt of your SAR, all additional correspondence regarding the request for additional information will not be responded to, unless payment of £10 is received.


Am I right in assuming that the additional items referred to in their response referring to “evidence in court” would have to be given to me as part of a pre trial pack ??( If it gets as far as that !!)

I need to advise Bwlegal about the SAR

I propose to make it short and sweet :

To Bwlegal

I acknowledge receipt of your Letter of Claim dated 28 December 2018.

A SAR has been sent to Britannia Parking and, accordingly, I do not expect any further processing of this matter until a response is received from Britannia Parking.

Please acknowledge receipt of this advice by email.

Me

Is that all for now or should I include the fact that I dispute the debt and list the reasons citing Schedule 4 PoFA ? I would prefer to wait for the SAR response before listing reasons

Advice please.


2. I’ve also written to 3 MPs – 2 for Plymouth and my own MP
3. Letter written to the landowner.
Rule1949
Re post 11 I am in process of sorting the reply to the Bwlegal Letter of Claim shown at post 6 above.

I will mainly be citing POFA, Schedule 4, para 9 and the points raised in post2 .

Should I also at that stage include the conflicting information / allegation received from Bwlegal and Britannia ??

Bwlegal letter 12 Dec 2018 ( see post 6) states. “..failed to make a payment or raise an appeal within 28 days ….”

Britannia letter dated 27th April 2017 ( see post 1) state “ …Thank you for your appeal received on 22/04/2017”. The also provided a POPLA code.

The SAR response from Britannia should be interesting in this regard.

For those interested my user name is not to referring to 1949 rule(s). It refers to Rule Britannia !!
nosferatu1001
For BW - state there is no pressing need to process your data at this time, as the limitations act applies, and they have a further X years to commence proceedings. To refuse to restrict processing is unreasonable behaviour.

For SAR - remind them you expect to get all PERSONAL data within the one month
FOr the adiditonal info such as the landowner contract and copies of signs, you require these under the pre=action prootcol AND under the overiding objectives, as these will help narrow the areas under dispute.
Knowing that tthese WILL narrow the areas under dispute, to refuse to disclose these until the witness statements stage will be considered an AMBUSH by you as claimant, and you will instead apply for a court order requireing sequential service of WS and documents, while comenting the lack of consideration given by Britannia to the court.
ostell
And the NTK is not compliant with the requirements to hold the keeper liable, several omissions.
Rule1949
Well, i't been quiet for the last 3 weeks. Received a positive response from my MP and a supporting call from the PA of one of the Plymouth MPs. Alas, nothing from the company that owns the car park.

Despite my request to Bwl to only contact me by mail or email they have tried to contact me by phone on 3 occasions in the past 3 weeks. ( Each time the phone rang for about 15 seconds _ not long enough for answerphone to engage but enough to be a nuisance. Needless to say but I didn't pick the phone up), I've has a robo email asking me to contact them but apart from telling them that I am still waiting for their client to respond to the SAR there is nothing polite that I want to say to them. So ne email sent to them.

Britannia received my SAR on 14th January. I have heard nothing from them since their acknowledgement. QUESTION - should I chase them ??? Personally I think not, - but I'm open to suggestions,
nosferatu1001
They have 30 days to respond
Watch out - they may state they dont HAVE to respond as its been passed to BW -> we've seen this on MSE forum

This is a lie. THey MUST respond.
If they try that, complaint to the ICO then a STRONG demand pointing out their legal obligations under the DPA2018 are still in place.
Rule1949
SAR response ( Generated 12/2/19 ) received yesterday, Most of response was copies of items that I had previously received or sent with the exception of the ‘appeal’. A redacted copy of which is attached.
After almost 2 years I cannot remember the precise layout of the online form ( neither, regrettably did I take a screenshot of it ) but it was not in the form of a letter as this copy is. I do recall that I preceded the written bit with a heading clearly indicating that the submission was for information purposes. After all this time I cannot recall selecting DRIVER – I don’t recall seeing the option!!!

Question 1. Who or what is Zatpark ?? Clearly my personal date has been obtained by them (it) and then reassembled into the form shown.

Question 2. Is there any point in trying to get an original copy of this ‘appeal’

The following item(s) were not received with the response

Machine report – when Britannia acknowledged my SAR their robo reply advised “You are not entitled to transactions which do not relate to you, you will be provided with your transaction only. We are under no obligation to provide you with anything further.”
I think I should have received machine reports for both the entry and exit of the vehicle AND the report showing the ticket purchase all these things relate to my personal data.

Should I chase Britannia for the info as it was omitted from their reply ??? I resume that if the answer is yes they should provide it without payment of £10.

There was nothing relating to the following( the comment following each item is what Britannia stated in their robo reply
• Landowner agreement - You are not entitled to business sensitive information, it will only be supplied at court, as evidence and not before.
• Contract with the driver - The contract is on the signage in the car park. A copy of the signage will be provided as evidence at court.
• Picture packs - A copy of the signage will be provided as evidence at court.

Turning to Bwlegal
I acknowledged their Letter of Claim at the same time as I advised them that I had requested the SAR from Britannia and told them not to process the matter further until I had the SAR response from Britannia.
As Britannia took 29 days to generate the report I intend to tell Bwlegal tomorrow that I will respond in full to their Letter of Claim before 2nd March ( their LOC stated before 1/2/19 – 2nd March is 1/2/19 plus 29 days).
Any comments / advice appreciated


cabbyman
https://zatpark.com/about

You could go back to Britannia and say that as they are refusing to help narrow the issues, you will bring their unreasonable attitude to the attention of the court, should it proceed that far.

Await comments from others.
nosferatu1001
Indeed. And mention the court report that found that refusing to comply with the PAP was unreasonable behaviour.
Rule1949
I found the ZatPark website. Based just a few miles from me. Some sort of IT solution for assisting parking companies. I'm convinced that my original response has been'shortened'. Can anybody post a redacted copy of a ZatPark print in response to their SAT when a full blooded appeal has been made online???? ( Trying to see how much detail of an appeal is on the ZatPark form

I'll wait another 24 hours before writing again to Britannia. In meantime I have emailed BWLegal advising that I have not had a full response to my SAR soo they must continue to defer further processing until I have all the info.
nosferatu1001
Its likely the system thatr takes the input and fills outs a set of database field
What youve seen is then just an extract from that database
What you saw, from the front end, no longer exists in that form.
Rule1949
Hello. and where have the past 5 months gone?

Regretably, a claim form has arrived from Northampton. I will be acnowledging receipt, and that I will be defending the claim, in the next couple of days. The Issue date was 5th July, so I make the service date 10th July and defence to arrive before 7th August. Is this right ??

Just a small point - On the claim form it states that the PCN was issued on 11th day of a month. The PCN shows a Date of Issue of 20th day of the month ( the alleged date of contravention was 11th day) . Error by Bwlegal, or me being pedantic ???

I hope to post a copy of my defence within the week.
nosferatu1001
No, dont wait. Do it ONLINE, TODAY.
33 days from 5th July, stick it in the calendar. Email it as a PDF - NOT MCOL, its awful.

The PCN was issued for a supposed contravention on 11th, you;ll get no mileage on it.
Rule1949
County Court Claim acknowledged and diary note set.

I'll keep the date error on hand for a future mention.

Have received an "It's not too late" letter from BWL, and am attaching what appears to be another badly written robo letter !!





I will be posting a draft of my defence for critique, within the next few days. In the meantime is it worth hitting BWL with a letter along these lines??


I am writing to formally request a copy of all paperwork on which you intend to rely in court as I look to narrow the issues as per Court Directives.
I have no doubt that you will have completed due diligence on your client's evidence prior to raising the claim, I therefore expect you to be able to send this to me within 7 days.
nosferatu1001
Noone will care about that letter.

Yep, sounds good to me.
Is your SAR in to the PPC as well? Thats the next standard step for ALL dclaims.
Rule1949
Do I submit another SAR to the PPC ??
I sent one in January which was responded to in February.

or should I now be requesting another SAR to include copies of contracts, photos and signage ??
nosferatu1001
How will a SAR get you info on contracts, signage etc, when theyre not your personal data?
Rule1949
Sorry , I missed a bit from my last re DSAR from PCC post. It should have read


should I now be requesting another SAR and include with may request details of contracte signage, photos etc being the items include copies of contracts, photos and signage ??

WhenBP acknowledged my SAR in January the specifically mentioned that Landowwner's Agreement;
Signage , and Picture packs will be provided as evidence at court.
ManxRed
A SAR will only return information containing data relating to you (and by association, such as your vehicle registration number, address, phone number etc.).

This is fine for letters they have sent you, data records relating to your vehicle, emails mentioning you or your vehicle, etc.

Contracts between them and landholders, signage, etc., will contain no references that can be used to identify you personally, so are excluded from an SAR.

What you need to do for these documents, is demand that they send you all the evidence they will look to rely on in any court claim (redacted if necessary). If they don't send it (and they may be reluctant to send the contract with the landholder for example), then you can claim that they are acting unreasonably, especially if they simply turn up with it on the day, without giving you a prior view of it.
Rule1949
Here is the first draft of my defence. I await your comments and thank you in anticipation of your further assistance which is GREATLY appreciated.





nosferatu1001
Initial impression: Long

make sure everything in there is a legal argument why you deny liabiltiy for... (a part of their claim), and that you either blnaket deny everything or you are careful to accept or deny EVERY element of their claim.

You have elements in there whyich are conversational and more fit for a witness statement, such as 11.

Why is 11 so far down? Its surely fairly important early on to establish who you are claiming against and why...
Rule1949
Thanks Nosferatu1001. I'll set to produce version 2. Just to check..are you suggesting para 11 (a) remains but is made less "conversational' and given an earlier point or (b) is taken out of Defence and made part of the WS ???
nosferatu1001
A defence is a series of legal arguments, and doesnt have evidence. So youwould say "The claimants claim does not sttae if the driver or RK is being pursued, however the claiants solicitors have confirmed this claim is against a RK. As such the defence is..."
but that would come up at the top - it is setting out the basis for your defence.

That the call was with J and it was recorded and it was on X, Y, Z dates....is all *evidence* to back up your argument.
Rule1949
Second defence draft attached. Reference the request to BWL for copies of all papers etc - nothing was received. Do I mention this in the defence or WS ??
jpegs deleted see post 37
Rule1949
Any comments on above post would be very much appreciated
nosferatu1001
We're massively busy here

Why do you not just copy and paste into the thread? The pictures load VERY slowly.
Rule1949
Apologies for the jpegs, I didn't realise they caused a problem

Herewith copy of revised defence for comments. Pleas again accept m thanks for the assistance. To say that it is a great help and support is a gross understatement.




IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

BRITANNIA PARKING GROUP LIMITED
T/A BRITANNIA PARKING(Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________

DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked for a period of 5 hours on April xx 2017, at xxxxxxxxxxx . This is confirmed by the Claimants ANPR system. The Defendant purchased a ticket to cover 6 hours for parking. This is confirmed by the Claimant’s machine report.

3. The court will see that the date of the PCN entered in the Particulars of Claim is zz/xx/2017. The Defendant has never received a PCN dated zz/xx/2017. The only PCN the Defendant has received from the Claimant was dated yy/xx/2017. Throughout this defence the defendant will be referring to the PCN received, dated yy .

4. The Parking Charge Notice (PCN), dated April xx 2017, and sent to the Defendant as the Registered Keeper, gives the unspecific reason for issue as “Failed to make a valid payment”. This notice does not comply with meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Additionally the PCN failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to give notice of keeper liability as prescribed by section 9 (2) (f) of the Act. The Claimant also failed to give the invitation to keeper as required by 9 (2) (e) of the same Act.

5. The Claimant’s claim does not state if the driver or registered keeper is being pursued. However, the claimant’s solicitors have confirmed that this claim is against the defendant as Registered Keeper. As referred to in 4 above PCN does not state that “after a period of 28 days” it would have the right to recover the unpaid parking charges from the keeper.

6. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

7. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

8. The Defendant did not retain the ticket from the Pay & Display machine(PAD). When the PCN was received the Defendant wrote to the Claimant using its online system. The Defendant confirmed that it was his car and provided details of the debit card used to purchase the ticket. The Claimants treated the advice as an appeal, and dismissed it. The Defendant was advised that an incorrect registration was entered. Xx xx xxx Whether this was as a result of machine or human error cannot be ascertained.

9. The Claimant has the technology to refuse to accept incorrect number plates. Its ANPR systems know which plates are in the car park at any time. Charging people for entering the wrong number is therefore purely a money-making exercise and has nothing to do with car park management. The fact is that a ticket was bought. It is the defendant hope that this case will be looked upon as minor, easily reconcilable error to which the legal doctrine de minimis non curat lex will be applied.

10. A British Parking Association operator is required to have transparent, fair and professional procedures including manual checks to identify such minor infringements. The Defendant requests that the Claimant provides the Court with a copy of their policy and proof that those checks were made in this instance. Further proof that ''wrong VRN' is in fact specifically incorporated into the contract from the landowner, as a penalty-generating 'contravention', is also requested.

9. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation. The Claimant has been requested to supply this information to the Defendant. To date they have refused such requests.


11. 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 £85. The claim includes an additional £60, for which no calculation or explanation is given, and a further charge of £50 for Legal Representative’s costs. This appears to be an attempt at double recovery. In June 2019 Judge Taylor, sitting at Southampton County Court, struck out a similar claim by the Claimant and BWLegal, which included such charges, stating that it was an abuse of process.

12. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date
Rule1949
After posting 37 above I edited a previous post to remove jpegs. I think that meant that the above post was not shown on the system as a new post /. Does this make sense??

Any comments on the revised defence would be appreciated .

Thanks
nosferatu1001
I can takea guess who drove, based on 2. If i can guess, so can a court.

If the drivers identity is known then POFA protections at 11 disappear.
Rule1949
Guess ?? There's me thinking it's all down to evidence !!

Would 2 be better as


2. The facts are that the vehicle, registration XXXX, of which the Defendant is the registered keeper, was parked for a period of 5 hours on April xx 2017, at xxxxxxxxxxx . This is confirmed by the Claimants ANPR system. A ticket was purchased to cover 6 hours of parking . This is confirmed by the Claimant’s machine report.

Thanks
Rule1949
Hi Nosferatu1001.

If possible would you comment on my last post, please. I have another 10 days to post my defence, but what with looking after grand children and other commitments, I would like to complete the delivery to MCOL by Thursday. Many thanks
Rule1949
HELP / GUIDANCE NEEDED

I urgently need a reply to the recent post regarding an amendment to my defence.

I must submit the defence a week early due to family commitments.

Thank you
Redivi
I'm assuming that at some time you've received a letter from BWL that refers to £60 legal costs

Try this

DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim state the Claimant issued a PCN dated zz/xx/2017. The Defendant denies that he has ever received a PCN with this date. The Defendant admits that he has received a PCN dated yy/xx/2017. The sparse Particulars do not identify the PCN by reference number but the Defendant has the reasonable belief that they are one and the same.

3 The Particulars of Claim fail to provide any description of the driver's actions that give rise to the claim. It is also unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. The Defendant invites the Court to strike out the claim for failure to disclose a cause of action and failure to comply with CPR 16.4 Contents of the particulars of claim and Practice Direction 16 paras 7.3 – 7.5. The Defendant further invites the Court to strike out the claim as an abuse of process. The Claim includes an amount of £60 for which no explanation is given. The amount has, however, been described in previous correspondence from the Claimant's solicitor as "Legal Costs". The Claimant's solicitor is fully aware that these cannot be recovered in the Small Claims Court.

4. The claim does not state if it is the driver or the registered keeper that is being pursued. However, the claimant’s solicitors have confirmed that this claim is against the defendant as Registered Keeper. The Claimant has never, however, acquired any right to recover a payment from the Defendant as keeper. The Parking Charge Notice (PCN), dated April xx 2017, and sent to the Defendant as the Registered Keeper, gives the unspecific reason for issue as “Failed to make a valid payment”. This notice does not comply with the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Additionally the PCN failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to give notice of keeper liability as prescribed by section 9 (2) (f) of the Act. The Claimant also failed to give the invitation to keeper as required by 9 (2) (e) of the same Act.

5 Notwithstanding that the Defendant denies that the Parking Notice complies with The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) the legislation states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £85. The claimant cannot recover from the keeper the additional £60, for which no calculation or explanation is given but the Claimant's solicitor has previously described as "Legal Costs" (that it knows cannot be recovered). In June 2019 Judge Taylor, sitting at Southampton County Court, struck out a similar claim by the Claimant and BWLegal, which included such charges, stating that it was an abuse of process.

6 The Defendant disputes that the Claimant has the capacity to take legal action is put to strict proof that it, in accordance with the British Parking Association Code of Practice Paras 7.2 and 7.3, has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation. The Claimant has been requested to supply this information to the Defendant but the requests have been refused.

7. The Defendant denies the Claimant's assertion that the vehicle was parked without a valid permit or payment. The Claimant has previously confirmed that the driver did purchase a ticket to cover 6 hours of parking and was parked for a period of only 5 hours on April xx 2017. The Claimant did not, however, regard the payment as valid because the registration number had not been either entered or recorded correctly. The Defendant is aware that the British Parking Association and POPLA, its independent appeals body, instructs parking company members to cancel parking notices for trivial errors. The Defendant requests that the Claimant provides the Court with a copy of its policy and proof that those checks were made in this instance.

8. The Claimant's ANPR system knows which vehicles are in the car park at any time and its technology can easily reject attempts to pay for a vehicle that is not present. The Defendant further asserts that the requirement to enter the full registration is a breach of the Consumer Protection from Unfair Trading Regulations 2008 as a term that has a hidden motive. The last three letters of the registration number easily identify a vehicle arriving within a short time window in a car park. The requirement to enter the full registration has no purpose except to expose the driver to a grossly disproportionate penalty as the result of a trivial mistake or a sticking keyboard.

The Defendant reminds that Court that that the driver essentially complied with the terms of parking; the Claimant easily identified the payment; any failure was de minimis and the Claimant has not followed the BPA instructions regarding trivial mistakes.

9. In summary, the Defendant asserts that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date
Rule1949
Hi Redivi. Thanks for your prompt response and suggestion.

I would like to use your sample but I have a couple of points to raise.

1. At the end of point 2 would the following sentence be ok ?? !!!

The only difference being a result of a data input error by the Claimant,s Legal Representative.

I find it impossible to apply the word Solicitor when talking about BWLegal.

2. Point 7.

(a) Refers to valid permit or payment. In this instance should the word ticket replace the word permit ??

(b) The second sentence refers to the driver purchasing the ticket. I have previously indicated that It was me who purchased the ticket, using my card. Due to this ,If it stays as it is, I would be identifying myself as the driver !!!


Could I amend the sentence to

The Claimant has previously confirmed that (a) the Defendant did purchase a ticket to cover 6 hours of parking and (b) the Defendant’s car was parked for a period of only 5 hours on April xx 2017.


I would also like to substitute solicitor with Legal Representative throughout. Would this be ok ??

Again, many thanks for your help
Rule1949
Following recent posts this is a further revised defence for comments please


IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

BRITANNIA PARKING GROUP LIMITED
T/A BRITANNIA PARKING(Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________

DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim state the Claimant issued a PCN dated zz/xx/2017. The Defendant denies that he has ever received a PCN with this date. The Defendant admits that he has received a PCN dated yy/xx/2017. The sparse Particulars do not identify the PCN by reference number but the Defendant has the reasonable belief that they are one and the same. The only difference being a result of an input error by the Claimant,s Legal Representative.

3 The Particulars of Claim fail to provide any description of the driver's actions that give rise to the claim. It is also unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. The Defendant invites the Court to strike out the claim for failure to disclose a cause of action and failure to comply with CPR 16.4 Contents of the particulars of claim and Practice Direction 16 paras 7.3 – 7.5. The Defendant further invites the Court to strike out the claim as an abuse of process. The Claim includes an amount of £60 for which no explanation is given. The amount has, however, been described in previous correspondence from the Claimant's legal representative as "Legal Costs". The Claimant's legal representative is fully aware that these cannot be recovered in the Small Claims Court.

4. The claim does not state if it is the driver or the registered keeper that is being pursued. However, the claimant’s solicitors have confirmed that this claim is against the defendant as Registered Keeper. The Claimant has never, however, acquired any right to recover a payment from the Defendant as keeper. The Parking Charge Notice (PCN), dated April xx 2017, and sent to the Defendant as the Registered Keeper, gives the unspecific reason for issue as “Failed to make a valid payment”. This notice does not comply with the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached. Additionally the PCN failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to give notice of keeper liability as prescribed by section 9 (2) (f) of the Act. The Claimant also failed to give the invitation to keeper as required by 9 (2) (e) of the same Act.

5 Notwithstanding that the Defendant denies that the Parking Notice complies with The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) the legislation states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £85. The claimant cannot recover from the keeper the additional £60, for which no calculation or explanation is given but the Claimant's legal representative has previously described as "Legal Costs" (that it knows cannot be recovered). In June 2019 Judge Taylor, sitting at Southampton County Court, struck out a similar claim by the Claimant and BWLegal, which included such charges, stating that it was an abuse of process.

6 The Defendant disputes that the Claimant has the capacity to take legal action is put to strict proof that it, in accordance with the British Parking Association Code of Practice Paras 7.2 and 7.3, has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation. The Claimant has been requested to supply this information to the Defendant but the requests have been refused.

7. The Defendant denies the Claimant's assertion that the vehicle was parked without a valid permit or payment. The Claimant has previously confirmed that (a) the Defendant did purchase a ticket to cover 6 hours of parking and (b) The Defendant’s car was parked for a period of only 5 hours on April xx 2017. The Claimant did not, however, regard the payment as valid because the registration number had not been either entered or recorded correctly. The Defendant is aware that the British Parking Association and POPLA, its independent appeals body, instructs parking company members to cancel parking notices for trivial errors. The Defendant requests that the Claimant provides the Court with a copy of its policy and proof that those checks were made in this instance.

8. The Claimant's ANPR system knows which vehicles are in the car park at any time and its technolog, if suitably set up and applied, can easily reject attempts to pay for a vehicle that is not present. The Defendant further asserts that the requirement to enter the full registration is a breach of the Consumer Protection from Unfair Trading Regulations 2008 as a term that has a hidden motive. The last three letters of the registration number easily identify a vehicle arriving within a short time window in a car park. The requirement to enter the full registration has no purpose except to expose the driver to a grossly disproportionate penalty as the result of a trivial mistake or a sticking keyboard.

The Defendant reminds that Court that that the driver essentially complied with the terms of parking; the Claimant easily identified the payment; any failure was de minimis and the Claimant has not followed the BPA instructions regarding trivial mistakes.

9. In summary, the Defendant asserts that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date
anon45
Subject to the advise of the others, I would consider adding that, under the obvious intention and correct interpretation of the POPLA ruling, the appeal was in fact allowed, such that the claim is estopped.

In the alternative, if the above argument is not accepted, I would draw attention to the fact that the independent appeals body, POPLA, found that the signage was inadequate to create a contract, and invite the court to come the same conclusion.
southpaw82
Is there any reason your defence is massively long?
Rule1949
Hi Southpaw82

The defence is massively long probably because its got too many words in it !!!

This is my first attempt at writing a defence. It's also my first (known) parking problem in over 50 years of driving

In your opinion should I look to tidy up #37. or. #45 ????

I have to submit my defence in 7 days at latest and I intend to submit it at the weekend so positive comments / guidance would be appreciated

ostell
@Southpaw, as an aside from the thread I have received a defence from the solicitors of a company I am claiming against. The actual defence itself is 11 pages long in 10 or 11 point and then 3 annexes of some 20 pages total? This was directly from the solicitor and not via MCOL. The accompanying letter states that they have sent to the court but MCOL have not registered it yet although it is past the 28 days.

What would the court think of that?
southpaw82
QUOTE (ostell @ Wed, 31 Jul 2019 - 11:55) *
@Southpaw, as an aside from the thread I have received a defence from the solicitors of a company I am claiming against. The actual defence itself is 11 pages long in 10 or 11 point and then 3 annexes of some 20 pages total? This was directly from the solicitor and not via MCOL. The accompanying letter states that they have sent to the court but MCOL have not registered it yet although it is past the 28 days.

What would the court think of that?

Without any details of the claim it’s impossible to say. As it’s off topic you’ll have to take it up elsewhere.
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