BW Legal County Court Claim - NCP Parking Charge Notice

[baoli]

hi Ostell,

thanks for reply

i have a read carefully so according to my understanding 9 2 f ii condition is not on the NTK. am i correct?

also can they claim anything more in cost than on the claim form as they are saying they will highlight in the court that defence contains nonsensical points?

Shall i just them email and point out about non compliant NTK and ask them to withdraw?

Many Thanks

[ostell]

Yes they have missed out a great chunk of required text.

POFA 4 (5) defines the maximum sum that can be claimed from the keeper. They are attempting to claim more than they are entitled to.

they can't claim for their costs unless you have behaved seriously unreasonably.

It is frighteners that your defence is rubbish, standard statement from them

[baoli]

Yes they have missed out a great chunk of required text.

POFA 4 (5) defines the maximum sum that can be claimed from the keeper. They are attempting to claim more than they are entitled to.

they can't claim for their costs unless you have behaved seriously unreasonably.

It is frighteners that your defence is rubbish, standard statement from them

hi Ostell,

thanks for the input.

we never contacted NCP or BW legal so this does not count towards seriously unreasonable?

I will send them an email stating about the non complaint NTK pointing them about the non compliant bit and also about the maximum sum which can be recovered and will ask them to withdraw the case. Hopefully they will do.

i am happy to go to court to defend even if we loose and we do not have to pay as much as they claiming.

thanks

[ostell]

It is unreasonable. Ask them to explain the additional amount being claimed.

They won't withdraw but it puts them on notice that you know more than they thought.

[baoli]

Hi Ostell,

i am thinking to send following email. Would you be able to have a look at it and advice if its ok?

Hi,

We are in receipt of your letter dated ---------
Case Reference number.
I am writing this email with relating to above court case.
You client is relying on POFA 2012 SH4 to held keeper liable for the PCN but as you know to hold keeper liable for the charge NTK has to be fully compliant with POFA 2012 SH 4. I would like to point out that NTK is not fully compliant with POFA 2012 Sh4.

1. Not Compliant with 9.2 a, No period of parking as NTK only contains two pictures one for entry and one for exit which cannot be classed as “Parked”
2. Non Compliant with 9.2 f(ii).

POFA 12 Sh 4 says that “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;”
Also your claim contains an extra amount of £60 which POFA 12 does not allow under section 4 (5) and also was not allowed by Supreme Court in Parking eye vs Beavis case.

So in light of above you are kindly invited to withdraw the case.

Kind Regards

[ostell]

"As you have no reasonable prospect of success in this matter then I suggest that the case is withdrawn with both sides meeting their own costs." For last line

[baoli]

Hi Ostell,

I have sent the email and now see what they reply.

Many Thanks for your help.

[baoli]

Hi Ostell,

We have received following reply from BW legal with regards to email sent with a new off of 165. Would you be able advice any further?

thanks



In response to your earlier email:

1. Our Client is able to rely on POFA 2012 Schedule 4 to hold you liable for the PCN as the registered keeper of the Vehicle as they have fully complied with all necessary requirement. You are put to strict proof of the contrary.

In regards to section 9.2a which you have pointed out, upon entering the private land a motorist has a 10 minute consideration period to consider the terms and conditions and decide if they wish to abide by the same. As you exceeded the grace period you automatically accepted the terms and conditions for the Car Park. Therefore it is entirely irrelevant whether the Vehicle was “Parked”

Section 9.2f(ii) states:
“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;”

Please see the enclosed copy of the Notice to Keeper in which you were invited to either pay the unpaid paring charge or if you were not the driver of the vehicle, to notify our Client of the name and current address of the driver. This letter also warned that, “if after the period 28 days beginning with the day after that on which the Notice is given the amount of the unpaid parking charge specified has not been paid in full, further recovery action will be taken to secure payment”.

Therefore it is our Clients position that Section 9.2f(ii) has been complied with.

2. We refer you to paragraph 4(6) of Schedule 4, Protection of Freedoms Act 2012 which says “Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges (but this is not to be read as permitting double recovery)”. It is our Client's position that this does not prevent the parking operator from claiming debt recovery charges/contractual costs.

The signage in situ makes provision for our Client to recover any additional costs (Contractual Costs) incurred by them in relation to the PCN. The Contractual Costs referred to above formed part of the terms and conditions (of the parking contract) which were accepted by you in the course of staying at the Car Park. Save for the fact that the sum of £60.00 attributable towards these costs are entirely reasonable for nature and type of work involved in recovering the parking charge, such costs are recoverable under the relevant parking code of practice.

Therefore our Client is satisfied that you remain liable for the PCN and will be continuing to take action. However, our Client is keen to reach an amicable settlement with you to prevent the need for further court involvement.

[ostell]

They are trying it on. POFA is very specific about the maximum sum that can be claimed form the keeper. The driver may have read the additional items on the notice but that is the contract with the driver. The keeper cannot be held liable for that contract.

For 9 (2) (f) they simply do not state the required text. As I said reading the Act it says "Must State" they didn't

[baoli]

hi Ostell,

thank you for your reply.

Shall i email them back pointing out all these and do you think they are correct about 9.2 a?

[ostell]

9 (2) (a) has nothing to do with the grace period, it requires a period of parking. Moving in front of cameras cannot, by definition, be parking. They are arguing chalk and cheese.

30 minutes is a bit large though

yes point out their misinterpretation to them

[baoli]

Hi Ostell,

I am thinking to send following reply. Do you think its ok? thanks for your help



"Thanks for your reply and offer.
With regards to POFA 12 9.2 a, it has nothing to do with the grace period, it requires a period of parking. Moving in front of cameras cannot, by definition, be parking.
And for 9.2 f (ii) NTK simply does not state the required text. As reading the Act it says "the Notice Must" state all the condition in POFA 12 and this NTK is missing 9.2 f(ii) as it does not warn the keeper.
POFA 12 is very specific about the maximum sum that can be claimed from the keeper. The driver may have read the additional items on the notice but that is the contract with the driver. The keeper cannot be held liable for that contract. Further, the purported added 'costs' are disproportionate, vague and in breach of the CRA 2015 Schedule 2 'terms that may be unfair'. This added extra 60% of the parking charge is a disingenuous double recovery attempt that has already been exposed and routinely disallowed by many Courts in England and Wales.
I still think that you have no prospect of success in this case so you are kindly invited to withdraw the case."

[baoli]

Hi Ostell,

Would you be able to advice on above please?

many thanks

[ostell]

Should do

[baoli]

Hi Ostell,

we sent the above email. they called us and asked if we are willing to accept offer for £165 which we said no and asked to reply to email.

we have received a letter today in which they have said that our comment that moving in front of camera does not count as parking is irrelevant and car park is monitored by ANPR camera and they PCN is issued correctly and also that POFA allows them to recover debt recovery cost. They did not reply anything about 9.2 f (ii).

They have given us a new offer of £100 to settle the matter. Would you be able to give any advice what should we reply or do?

Many Thanks