KBT/Armtrac/BW Windscreen PCN Claimform - blown away ticket- Lusty Glaze car park, Newquay - Advice Please

[dx100uk]

So a bit tight to the deadline at present..

give till this time next week and if there is no mcol n180 status update nor has the claimant sent you their n180.. Id say the claim would be automatically stayed...mcol doesnt show that as its a std court process..

 

should that transpire, the fleecers wull have to spent £275 to lift the stay..

 

if you go read a good few 10's of pcn claimform threads here you'll see its a game of who blinks 1st or wets themselves ...thats why we call them speculative claims.

 

Dx

 

 

[Willow2020]

Hi, I've been sent an N180 form  - is there anything in particular I need to do, the form seems simple enough to complete but do I need to add anything, any further points of my defence? And do I send a copy to the Claimant?

 

Many thanks for the advice

[AndyOrch]

 

[dx100uk]

Dont give the fleecers you r email/phone/sig on their copy

[Willow2020]

Thank you for the help, I did try and search N180 prior to posting but didn't find anything so the link is appreciated - just wanted to check before making any mistakes

[Willow2020]

Hi,

 

Following on from all the last posts

 

 I have received  a notice of allocation to the small claims track and have to submit my witness statement and all other documents I intend to rely on,

 

in relation to my witness statement ...

 

do I write down all my points of defence as this is something I have to send to the Claimant also?

 

Is there anything specific which would help.

 

One aspect I can prove is that their signage is incorrect in relation to 'vehicles must be parked fully within the confines of a marked bay' 

 

there are no marked bay's anywhere in the car park, therefore how can I agree to the t&cs.

 

Many thanks

 

 

[dx100uk]

plenty of PCN witness statement already here to base yours on, use our enhanced google searchbox

when is the hearing and is it 14 days before for the WS?

[Willow2020]

the hearing is in August but i have to get the witness statement over to the court by the 6th of May.

 

they the hearing is in August but i have to get the witness statement over to the court by the 6th of May.

The court letter came through last week and it states they have to pay the fee by the 15th of July. 

 

Not to sure how to find the PCN witness statement examples, is it the top right search box?

[dx100uk]

6 may?

 

When did you get the n157?

That doesn't sound right?

When have they got to pay the fee by?

[dx100uk]

can you scan the n157 up please both sides.

use one PDF read upload 

 

use our enhanced google searchbox not the one in the top red banner

 

.

 

[Willow2020]

Thanks for the info, N157 attached

 

N157.pdf

[FTMDave]

You're right, it does say 6 May, which is very strange.  You seem to have found a particularly pernickety judge who has even insisted on font size and a maximum number of pages.

 

Still, if there's pressure on you from the judge there is also pressure on the fleecers, who have a laughable "case".

 

There is an example of a WS around post 111 here  https://www.consumeractiongroup.co.uk/topic/423658-backdoor-ccj-opsdcbl-2017-windscreen-pcn-got-set-aside-awaiting-hearing-date-outside-lines-vantage-point-brighton-claim-dismissed/page/5/#comments  Some of the legal arguments will be the same as yours, some will be very different, but it gives an idea of how to set the document out.

 

So you need to get on with a first draft of the WS.

 

A lot of the regulars are at work now, me included, but we'll pop in to help this evening.

[Willow2020]

Hi FTM Dave,

 

Thank you for the reply and info, much appreciated. I have drafted my ws and attached. I would be very grateful if you can have a look.

 

WS.pdf

[FTMDave]

Good grief, you don't mess about - an entire Witness Statement drafted in under an hour!

 

Work calls at the moment but I'll have a proper read through later on this evening.

[FTMDave]

Well done on all the work you've done.

 

Obviously it's a first draft so we will have tweaks and additions to add.

 

The least you admit to being the driver the better, so in (4b) instead of "I returned" "the driver and their party returned".  Instead of "I searched" "the driver and their party searched".  "Attendant" not "attended".  "The valid ticket" not "my valid ticket".  "They checked not "I ckecked" and "they also found" not "I also found".  "I parked my car" becomes "they parked their car".  "They left the car park" not "I left the car park".

 

Before (5) add the title NO LOCUS STANDI.

 

In (7) lay it on thick that your CPR request asked for proof of a contract with the landowner to bring claims in their own name but Amtrac have not replied.

 

Between your current (9) and (10) I would add another paragraph, that under the Parking (Code of Practice) Act 2019 the government is regulating the industry and point 9 of the Code of Practice clearly states "The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued".

 

You might as well print the whole thing out  https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice  well points 1-16 ignoring the forward and appendices and use it as an exhibit.  More in a moment ...

 

Edited May 2, 2022 by FTMDave
Typos

[FTMDave]

So at the moment your sections are -

 

Sequence of Events

No Locus Standi

Double Recovery

 

We generally suggest to chuck the kitchen sink, as it only needs the judge to agree on one point for the case to be hoyed out.  So I suggest extra sections -

 

Sequence of Events

No Locus Standi

No Keeper Liability - put in the points about not complying with POFA that you've made in your thread

Illegal conduct - you don't believe they have planning permission for their signs, they have not replied to a CPR request to show PP,  lack of PP is a criminal offence and means no contract can have been formed

De minimis - this is your ace.  You paid.  They suffered no loss.  Any competent company would make the tickets adhesive in such a windy place.  Refer to point 6.2 of the government's CoP (in fact stick the CoP in as an exhibit at this point, not later).  Try to look up other "fluttering ticket" persuasive cases.  

Double Recovery

 

For the next version respect the judge's directions.  If the WS goes over 5 pages they we can do a complete version and an abbreviated version.  This is to get browny points with the judge as you can be sure the fleecers won't respect the directions.  In fact with a bit of luck the fleecers won't notice the 6 May deadline and will mess up.

[lookinforinfo]

The new Code of Practice section on Pay and Display is interesting-

 

6.2 Pay-and-display

Where relevant obligations require the parking tariff receipt to be displayed in the parked vehicle, in addition to the information given in 6.1.2, the parking operator must ensure the information provided includes clear instructions on where the receipt is to be displayed. A thorough check through the windscreen and side windows of a parked vehicle must be conducted before a notice of parking charge is issued for non-display of a receipt by a parking attendant.

 

It would seem common sense to check first unless you were a scummy company who just wanted the motorist's money rather than run a car park for the benefit of the store and the motorist.  Case proved- they are a scummy company.

[lookinforinfo]

It looks as if you haven't received an NTK as it should have come between 28 and 56 days after the alleged breach. I note that early on you received an email with photographs  f your car. That usually means that you have identified yourself as the driver so an NTK is unnecessary.  Therefore they can only pursue you as the driver and cannot use POFA to transfer the claim to you as keeper [DCBL are good at that ].

 

Is there  a photograph of the inside of your car showing the ticket on the floor ?  

 

There have only been a few cases so far where the new Government Code of Practice has been used. Some of the Code should be in force now but as that would mean a loss of income to the parking crooks they choose to ignore it. This is good news for you as you can point out where they have fallen short of their legal responsibilities so they can be caught out.  You have to bear in mind that Judges try to be fair to both sides and while they are at fault, so were you by not checking your ticket.Fortunately that is a minor quibble and you did pay so you should have a successful day.

 

I will go over the new Act with you tomorrow and try and wait until you receive their WS as they are often rubbish and easy to knock thus putting you in an even better place with the Judge.

 

[Willow2020]

I also called Cornwall Planning office and they couldn't find any planning permission for the signage, I have also looked at the planning applications online for the car park many years ago and there is nothing.

 

Would it be advisable to add these points to the WS?

 

A contract was never formed. There was never a contractual relationship, whether categorised as a licence or some form of contractual permission, because the signage does not offer an invitation to park on certain terms. The terms are forbidding, per C5GF17X2, Guildford County Court, heard by Judge McCulloch, citing Arrale v Costain Civil Engineering Ltd [1976] 1 Lloyd’s Rep 98:
‘…in this case there is no evidence of a true accord at all. No one explained to [the plaintiff] that he might have a claim at common law. No one gave a thought to it. So there cannot be an agreement to release it. There being no true accord, he is not barred from pursuing his claim at common law.’

Consumer Rights Act (CRA) 2015 – Unfair Terms
Even if a contract had been formed it would be void, or in the alternative the following terms are either not transparent or are unfair, and these terms are not binding on the consumer, for the following reasons. Section 71 of the Consumer Rights Act 2015 provides that the Court has a duty to consider the fairness of the terms.
 

 The term, ‘A valid ticket must be purchased to park on this site and be displayed clearly in your front windscreen’ in particular the meaning of ‘displayed clearly’ is not transparent per Section 68 of the CRA 2015. Where contract terms have different meanings Section 69 of the CRA 2015 provides a statutory form of the contra proferentem rule, such that the consumer must be given the benefit of the doubt. If the Claimant wanted to impose a term to continuously display permits, then they should have drafted clear terms to that effect. Fluttering ticket cases have been ruled by PATAS adjudicators in Council PCN adjudications as requiring specific terms to 'continuously display' or there is no contravention. The term is fundamental to the contract, and the Defendant invites the Court to find that it is not transparent and therefore unfair. If a fundamental term to the contract is deemed to be unfair, then the contract will cease to bind the parties. The Defence invites the Court to take these issues into account in determining the fairness of the term.

I include the views of Council Adjudicators regarding the well-known issue of 'flimsy fluttering tickets' in my defence, because the Supreme Court (and the Court of Appeal Judges) in Beavis were happy to draw similarities with Council PCNs:
http://www.manchester.gov.uk/egov_download...Report_2006.pdf

[FTMDave]

Firstly I've had to hide two posts because you uploaded DOCX files which show all your personal details.

 

Both files were old versions of the WS anyway.  Please upload the new version in PDF format so the fleecers can't identify you.

 

I read your thread from the start last night and saw that you might have outed yourself and lost your POFA protection, however, the fleecers, imbeciles that they are, might not pick up on it, and so I thought you might as well go for the POFA stuff too.  if the judge chucks that bit out, so be it, nothing ventured ...

 

Well done on the PP research, certainly include that.

 

The "contract was never formed" bit can't be included, prohibition refers to "no parking" cases which are different from yours.

 

Certainly include the stuff about "fluttering tickets" though in your "de minimis" section.

 

The more I think about it, the more I think it's important to respect the court's orders re formatting, double spacing, number of pages - because you can be sure the fleecers won't do so and you can indirectly put them in hot water with the judge.  Please prepare the next version with this in mind and we can see how far it overruns the five pages. 

[Willow2020]

Thank you for removing the two posts, I hadn't realised that it showed these details!

 

I have reattached with the correct format, 12 font, double spacing and page numbers - at the moment it is 6 pages. Your time and help is really appreciated.

WS.pdf

[FTMDave]

That is superb - well done.

 

There are a couple of typos, in (4 b) "attendant" not "attended", later the title "DOUBLE RECOVERY" not "DOUBLE RECEOVERY".

 

(12)  Needs to be rephrased.  The problem is not the real costs they are entitled to but the £60 they have made up.  Change to "12) Although the original parking charge notice was £100, KBT Cornwall Ltd are claiming £160 plus allowed court costs plus interest."

 

I would cut out (15) completely to respect the 5-page limit.  There is nothing there that (16) doesn't cover.  If there is still space near the end stick in a quick paragraph "I would have liked to expand on some legal points but I have reduced this Witness Statement to respect the Court's 5-page limit and deadline".  I bet the lazy fleecers won't bother to do the same and may well wind the judge up.

 

Personally I'd quickly include POFA but your call.

 

Do you really not want to use the government's CoP (6.2) & (9)?

[lookinforinfo]

The Government brought out  a sequel to PoFA 2012 in 2019 though all of it does not come into force until 2023. But the Government has said that those items that can be brought in now, should be and others like the rewriting of the wording of PCNs will take longer as will new arrangements with Land owners.

 

For example the new Code reinforces the old PoFA about  extra charges. The government say that they are a rip off and the old PoFA stated that the maximum charged would be the amount on the signage {ie £100 ]. So any parking crook still overcharging should be banned from access to the DVLA.  It is a definite no no.

 

It follows that when a ticket falls off the dashboard that an attempt should be made to look around the car for a fallen ticket especially in this situation where a gale is blowing. In any event the ticket is proof that the tariff was paid  even if the parking crooks do not accept that the Act is in force, Judges should certainly be in doubt that such a simple ruling should already be in force or that it would be prudent for parking crooks to observe it since that is the will of Parliament.

 

 

There is no keeper liability  because the NTD was non PoFA compliant plus no NTK sent so they can only pursue the driver.

 

If you can wait till the last moment before posting to the Court to allow KBT to send their WS to you that could give you more ammunition.

 

 

 

 

[Willow2020]

Hi, I've made those first amendments  but not 100% sure how to include POFA in the statement and the process or lack of it that followed to issue the NTD/NTK.

 

I know admitted to them that I was the keeper of the car and bought a ticket, they then sent me letters direct but no NTD/NTK, then BW Legal took over. How do I explain the ticket was non POFA compliant. 

 

Also I was going to post these documents to the court or am I best sending them via email? If I post I would want to get it sent today to ensure it gets there in time, hopefully KBT will land today.

 

Thanks again for your time and help

[FTMDave]

You can certainly e-mail the court their copy.

 

To save rereading your whole thread can you remind me - how did you communicate with the fleecers?  Have they got your e-mail address?

 

My first thought about POFA is that they didn't send you a NTK/PCN.  There are some Caggers who are real experts on POFA and tend also to be Night Owls, so hang on and see if they pop in this evening.  You still have more than two days before you have to e-mail the court.