Excel Windscreen PCN claimform - Media City Manchester

[honeybee13]

Could you give us the information requested in the forum sticky please? That will help us to advise you.

 

HB

 

[ericsbrother]

the wording of the NTK has to use certain key phrases to be POFA compliant, miss out any of these and either no liability at all is created or no keeper liability depending on what they get wrong.

For example, failt o identify the land or stae they are the creditor then no-one owes them money

[_Ray_]

Name of the Claimant ? - Excel Parking Services Ltd

claimants Solicitors:  - No mention of any lawyers name/s. The court document is signed by Simon Renshaw-Smith (Claimant) so maybe he is representing himself nowadays

 

Date of issue - 02.09.19

 

What is the claim for -

 

1.The claim is for breach of contract for breaching the terms and conditions set on private land.

 

2.The Defendant's vehicle, XXXX XXX, was identified in the MediaCityUK Surface Car Park on 18/04/2019 in breach of the advertised terms and conditions; namely parked after the expiry of the time purchased.

 

3.At all material times the Defendant was the registered keeper and/or driver.

 

4.The terms and conditions upon entering private land were clearly displayed at the entrance and in prominent locations.

The sign was an offer and the act of entering private land was the acceptance of the offer hereby entering into a contract by conduct.

 

5.The signs specifically detail the terms and conditions and the consequences of failure to comply, namely a parking charge notice will be issued, and the Defendant has failed to settle the outstanding liability.

 

6.The claimant seeks recovery of the parking charge notice, contractual costs and interest.

 

What is the value of the claim? - £185.00

 

Has the claim been issued by the Private parking Company or was the PCN assigned and it is the Debt purchaser who has issued the claim? - Issued by the PPC

 

Were you aware the account had been assigned – did you receive a Notice of Assignment? - N/A

 

ADDITIONAL INFO...

 

1. There is no mention of POFA on the original PCN but I'm not sure if it needs to mention POFA in order to use it to establish keeper liability. They did add £60 to the original total which I believe is not allowed under POFA.

 

2. I was NOT the driver of the vehicle, I don't drive due to a medical condition.

 

3. I've scoured the Salford Council planning portal and can find no mention of any planning permission for signage at the site.

 

4. In an earlier post in this thread, EricsBrother outlined why the signage is wrong although I can't claim to fully understand what the issues are.

 

 

Ray

[dx100uk]

pop up on the MCOL website detailed on the claimform.
.
 register as an individual
 note the long gateway number given
 then log in
.
 select respond to a claim and select the start AOS box.
.
 then using the details required from the claimform
.
 defend all
 leave jurisdiction unticked.
 click thru to the end
 confirm and exit MCOL.
.
 get a CPR 31:14 request running to the solicitors [if one is not listed send to the claimant]

no need to sign anything
.
you DO NOT await the return of paperwork.
you MUST file a defence regardless by day 33 from the date on the claimform [1 in the count]

 

 

 

..

[ericsbrother]

 

 

to address your points

 

1 if they dont follow the protocols of the POFA they cant create a keeper liability. This is absolute, they cant invent it afterwards.

 

2. they have deliberately conflated and confused the 2 entities in the hope that as they have written to you as the keeper ( and they dont know who the driver is or they would have written to that person without accessing your keeper details) that it is accepted that you were the driver because most of the time that would be true.

 

It is for them to prove who they have a contract with or create that keeper liability.

 

You will be denying being the driver (dont say why or you may get caught out under case law going back to whan all cars had chauffeurs and thus the driver was your "servant") and point out they havent shown a cause for action against you as you are not liable in that capacity.

 

3 you wil state that you dont believe they have PP so a criminal offence and the driver cant enter into a criminal compact so no contract to breach.

 

4 dont fret over that, stating that the signage does not create a contract so there can be no breach of the same will suffice at this stage.

 

The detail of their rubbish wording will be for your witness statement if they still fancy losing oney when they see you arent wetting yourself and are going to take them on.

[_Ray_]

Thanks for all the help and information so far...

 

I have filed my AoS via the moneyclaim website, and have drafted my CPR 31.14 request letter using the template dx100uk pointed me to - will post it this afternoon. I assume it will need signing for?

 

When it comes to filing my defence, is it worth filing a counter-claim at the same time or is that too much hassle? I would like to counter in order to encourage them to drop their claim beforehand rather than them just not turning up on the day and therefore wasting everybody's time. If it's not advised though, I will listen to them that know best

 

Ray

 

[dx100uk]

no you don't counterclaim

you'll not find that advised anywhere here if you read like threads

 

[_Ray_]

OK that's fine...

 

Is it OK to post the defence on here once I've prepared it (hopefully next week) for you all to look through or is that not recommended?

 

Ray

[dx100uk]

What does everyone else do?

[_Ray_]

Been away since my last post so now I'm back it's time to get this sorted...

 

I've been given a template defence courtesy of Andyorch and have a couple of questions about it if that's OK? This is what I have...

 

 

 

So my questions are...

 

1. Can they ONLY establish Keeper Liability IF they mention POFA on the original Notice to Keeper? If so, what do I put in section 3 of the defence? If not, what do I put in section 3 of the defence?

 

2. In section 5 of the defence (signage), any suggestions as to wording for why a charge is not incorporated into the contract? I know Ericsbrother said not to get hung up on the signage issue at this stage, but it seems to me this should be included. I can delete that bit if that's the consensus here.

 

As always, apologies if some of these points are a bit newbish, this is not stuff I'm familiar with but eager to take them on if that's what they decide.

 

Cheers 

Edited October 2, 2019 by BankFodder
Removing template

[BankFodder]

Would be grateful if you wouldn't post our library templates up on the open forum. The advice and support here is completely free but we try to encourage people to register with us. We are happy for anybody to read almost every part of the forum but the library is reserved for people who are prepared to register.

Thanks

[_Ray_]

Sorry about that, wasn't aware of the situation. I asked further up the thread if it is OK to paste my intended defence and was told "What does everyone else do?" which I took to mean I should.

 

Maybe I misunderstood...

 

 

[Gick]

I think that it was expected that you would post up your defence as you would send it to the court, ie with dates, etc in your words. Instead you have merely quoted the library template. If you had read other threads you would understand this. It is no good merely quoting, you must understand the reasoning behind recommendations so that you can fight fire with fire.

[dx100uk]

look in any pcn claimform thread in this forum.

use the std 2 -5 line bare defence in most pcn claimform threads adapted to your circumstances.

 

dx

 

[_Ray_]

I know I keep making errors with this but can I ask one question - Does the original NTK need to mention the phrase POFA?

 

If the answer is NO, then I realise this might seem like a pointless question, but I've read and reread schedule 4 of POFA and I can't see that any of the mandatory information is missing from the NTK. If it does need to mention POFA however (the NTK doesn't mention it btw), it gives me something to cling to...

Edited October 3, 2019 by _Ray_

[_Ray_]

Still trying to identify where Excel's NTK might be non-compliant and hopefully this might be it...

 

In POFA Schedule 4 paragraph 4 subsection (5) it says:

 

The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified). 

 

Excel increased the charge from £100 to £160 but on the NTK it says that this extra amount is for Debt Collection. Can they legitimately add an additional £60 to the invoice by saying it's for debt collection?

 

Thanks

 

 

Edited October 3, 2019 by _Ray_

[dx100uk]

not seriously an issue that needs to be directly addressed in your defence

its covered by one of the many generic phrases we use. [EB post 31 here]

 

pop your defence up and get it fine tuned.

 

its due to be filed by 4pm tomorrow.

 

 

[_Ray_]

You're right, I have a tendency to over think things and was trying to find a POFA infraction to add to the defence given that it's POFA they are using to try to create liability. Here's where I'm at so far...

 

 

1. It is admitted that Defendant is the recorded keeper of motor vehicle XXXX XXX.

2. It is denied that the Defendant parked in MediaCityUK Surface car park at the times mentioned in the Particulars. The Claimant is put to strict proof of the same.

3. I submit that at the time of the alleged contravention, Excel Parking Services Limited did not have planning permission from Salford City Council, under the Town and Country Planning Act 2007, for their signage at the MediaCityUK Surface car park which is a criminal offence and that the driver can't enter into a criminal contract therefore no contract to breach.

4. It is denied that the Claimant entered into a contract with the Defendant. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the carpark is owned by, and the terms of entry set by, the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner.

5. The Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

[_Ray_]

Well I went ahead and submitted the defence as time was running short. As I said above I was trying to find a POFA violation seeing as this is the stick they are trying to beat me with, and I think I've found one but only AFTER submitting the defence - ooops!

 

The driver informed me today that a windscreen ticket was placed on the car windscreen, but this is the first time I'm hearing about it.

 

Anyway, the event happened 18/04/19 and the NTK was issued 24/04/19 - 6 days later! Schedule 4 says it should be issued "28 days following the period of 28 days beginning with the day after that on which the notice to driver was given" which makes it non-compliant - yay.

 

However, as I didn't mention this in my defence as I only found out after it was submitted, will I still be able to use it as part of my defence if it goes to court?

 

Thanks

[dx100uk]

pop up the NTK again to PDF

this time not obsuring the pictures.

 

dx

 

[_Ray_]

Here's the NTK without obscuring the images. If you were trying to see if a ticket was attached to the windscreen you can't tell from the images on the NTK but you can from some of the other images they've posted online so I've attached them as well. 

 

You can see from the first image there is nothing, then 1 minute and 1 second later there's a ticket on the windscreen...

 

 

 

ntk+pix.pdf

[dx100uk]

yep so shouldn't have been served within 29 days..

 

oh well that can be added to your WS

[_Ray_]

Thanks for the help, I'll post back if/when I hear anything else from them...

[Mrs O'Frog]

Nope, that's the red Excel/VCS "This is not a parking charge" notice by the looks of it.

 

It's been done to death and is clearly being interpreted wrong by the courts/DVLA IMHO. It is a notice and it is left for the driver, but is not classed as a NTD for the purposes of POFA, so we're back to ANPR rules and timescales. Mad as a box of frogs.

[ericsbrother]

Only the IAS use this wheeze as Will and John have applied the lack of clarity in the drafting of the legislation so to knock it out you will need to get a copy of Hansard for a transcript of what was said when the matter was debated in the house of Commons. that is the interpretation that is correct as it is the will of parliament.

See Firearms Act amendment Act 1997 and subsequent arguments about black powder pistols.