You have until 4pm on Tuesday 9th July to submit your defence. You do not have to submit your N180 DQ until you are issued one by the CNBC. There is nothing to stop you downloading one and preparing it though.
The link you provided to the landowner contract only shows the first page.
The Claimant has added £70 "damages" according to the PoC. A "debt recovery fee" is not "damages" and certainly should not be a part of any interest calculation.
PoFA 4(5) states that 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 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).
The Explanatory notes to the Act state at note 211: The creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (paragraph 4(5)).
Therefore, the maximum that can be claimed is £100 and any interest can only be calculated on this amount. The interest can only be calculated from the 28th day after the issue date of the PCN. However, the PoC state that the date the PCN was issued was 21st June 2023. That is mendacious. The PCN cannot have been issued on the same date as the alleged parking event. In fact the NtK shows that it was issued on the 23rd June 2023. So, interest on the £100 charge cannot be calculated before 21st July 2023.
21/07/2023 to 06/06/2024 = 321 days (0.879 years)
8%/year flat rate interest on £100 for 0.879 years = £7.04
The following should be added to the template defence under a sb heading as follows:
Preliminary Matter: The claim should be struck out
2. The Claim should be struck out on the basis that it contravenes Schedule 4, Paragraph 4(5) of the Protection of Freedoms Act 2012 (PoFA). PoFA clearly stipulates that a creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking charges as they stood when the notice to the driver was issued. The original Parking Charge Notice (PCN) issued by the claimant was for £100. The claimant's current claim is for £170, which exceeds the amount of the unpaid parking charges as stated in the original notice. The Claimant’s attempt to claim an unlawful amount constitutes an abuse of process and should not be allowed to proceed. The Defendant respectfully request the allocating judge to dismiss the claim on the basis of the Claimant’s contravention of Schedule 4, Paragraph 4(5) of PoFA and thereby CPR 1.1, CPR 3.4(2)(a) and (b) and CPR 27.14 and to award costs to the Defendant for having to defend against this improper claim.
3. Furthermore, the Claimant's interest calculation is based on the full £170, and they have not provided a breakdown of how the additional £70 "damages" was calculated. The Claimant has also failed to provide full and proper disclosure of all documents, evidence, and the precise calculation of the alleged debt.
Thank you for a prompt reply, I had noted the 09th of July but in the attached letter the CNBC issued on June 20th, along with the Directions Questionnaire they noted otherwise.
Thank you for highlighting this; updated Link for Landowner Contract - https://fuchsia-marcellina-40.tiiny.site/
Ahh, the penny has just dropped and I can now see that they have put the incorrect information on the particulars of claim...as they claimed the ticked was issued on the 21st instead of the 23rd.
I will certainly add this to the defence statement I aim to have this drafted soon.
Apologies for the delay, please see my first draft.
1.The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.It is denied that any conduct by the driver was in breach of any term. Further, it is denied that this Claimant (understood to have a bare licence as agents) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate text in the Particulars of Claim('the PoC').The facts as known to the Defendant:
2.The facts in this defence come from the Defendant's own knowledge and honest belief. Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case.The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action".The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the driver.
3. On the day in question, the defendant was taking her disabled mother to a local store. The defendant recalls displaying a disabled badge but it is possible that this may have fallen when placed. Due to the images provided, it is not clear whether or not there was or was not a badge on the vehicle.
Preliminary Matter. The claim should be struck out
4. The Claim should be struck out on the basis that it contravenes Schedule 4, Paragraph 4(5) of the Protection of Freedoms Act 2012 (PoFA). PoFA clearly stipulates that a creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking charges as they stood when the notice to the driver was issued. The original Parking Charge Notice (PCN) issued by the claimant was for £100. The claimant's current claim is for £170, which exceeds the amount of the unpaid parking charges as stated in the original notice. The Claimant’s attempt to claim an unlawful amount constitutes an abuse of process and should not be allowed to proceed. The Defendant respectfully request the allocating judge to dismiss the claim on the basis of the Claimant’s contravention of Schedule 4, Paragraph 4(5) of PoFA and thereby CPR 1.1, CPR 3.4(2)(a) and (b) and CPR 27.14 and to award costs to the Defendant for having to defend against this improper claim.
5. Furthermore, the Claimant's interest calculation is based on the full £170, and they have not provided a breakdown of how the additional £70 "damages" was calculated. The Claimant has also failed to provide full and proper disclosure of all documents, evidence, and the precise calculation of the alleged debt. Even if the "damages" were allowed to have interest calculated on them, the calculation is wrong which puts the rest of the Claimants particulars in doubt.
6. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be: (i) a strong 'legitimate interest' extending beyond mere compensation for loss, and (ii) 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines. The copy of the signs provided by the claimants solicitors DCB Legal could be any sign and is not adequate evidence these were the signs present on the day in question.
7. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances, is a penalty, not saved by Parking Eye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.Exaggerated Claim and 'market failure' currently being addressed by the UK Government.
8.The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap). It is denied that any 'Debt Fees' or damages were actually paid or incurred by this Claimant, who is put to strict proof of: (i) the alleged breach, which is not pleaded in the POC and requires further and better particulars, and (ii) a breakdown of how they arrived at the enhanced sum in the POC, including how interest was calculated, which looks to be improperly applied on the entire inflated sum, as if that was all overdue on the day of the alleged event. For example, the claimant avers
9.The Defendant avers that this claim is unfair and inflated and it is denied that any sum is due, whether in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.
