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Help with Witness Statement and Skeleton Argument
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Jinxycat
Posts: 16 Forumite
Hi,
I received a PCN from a private parking company and am now being sued on their behalf by Gladstones.
I have submitted my Defence and have recently received an email from Gladstones, purporting to include a complete Directions Questionnaire (most of it was blank) and making a 'special direction' that it be heard on the papers. I haven't had anything from the Court Business Centre yet, but I will contest the special direction.
I've pasted a revised copy of my Defence below, I've expanded it to include more case references. I'd be grateful for your feedback. I'm not sure if this now forms my witness statement or my skeleton argument, or both? Do I have to provide all my references and cases in the form of exhibits?
I welcome your feedback and suggestions. This is my first time as a defendant in the small claims process.
STATEMENT OF DEFENCE
1. I am the defendant in this matter.
2. It is admitted that the Defendant is the registered keeper of the vehicle in question. However, the Defendant denies that he is liable to the Claimant either as alleged in the Particulars of Claim or at all. Each and every allegation in the Particulars of Claim is denied.
3. The Claimant has no cause of action against the Defendant on the following grounds:
4. A ticket was paid for and displayed so all details could be seen, until it was dislodged by a gust of wind, although the Defendant has no knowledge of the point at which the ticket flipped over or why. The ticket gave the Defendant a licence to park for the entire day, from 09:00am on XX/XX/16, covering the time and date relating to the disputed charge. The ticket was marked with the reference XXXXX on the rear of the ticket, which will be demonstrated by the Claimant’s own evidence.
Non-disclosure of reasonable grounds or particulars for bringing a claim
5. The Claimant has not complied with the pre-court protocol and has not disclosed reasonable grounds for bringing a claim.
6. There was no compliant Letter Before County Court Claim, under the Practice Direction, meaning the Defendant could not compile a Formal Response.
7. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:
‘-- DATE – DESCRIPTION -- AMOUNT --DUE DATE
XX/XX/XX MY VRN/PCN £150 XX/XX/XX
Total due - £150
AND THE CLAIMANT CLAIMS
The Claimant claims the sum of £154.21 for
Parking charges and indemnity costs if
applicable including £4.21 interest pursuant
to S.69 of the County Courts Act 1984 Rate
8.00% pa from dates above to 01/12/2016
Same rate to Judgment or (sooner) payment
Daily rate to Judgment £0.03
Total debt and interest £154.21’
8. The Particulars of Claim provide no information regarding why the charge arose, what the original charge was, what the alleged contract was, whether the clam is brought for breach of contract or trespass, nor anything which could be considered a fair exchange of information. The Claimant’s solicitor has not stated on the claim form that particulars of claim will follow. The Defendant wrote to the Claimant’s solicitor on the Xx Xxxxx 2016, the xx xxxxxx 2016, and on xx xxxxxx 2016 with a Part 18 Request, to clarify issues but the Claimant and their solicitors declined to respond to the requests with a compliant response. The Defendant has therefore had to cover all possible defences, causing significant distress and denying a fair chance to defend the claim. The Claimant's solicitor is known to be a serial issuer of particulars of claim which arise from an automated template, with no due diligence, and is believed to be the subject of an active investigation by the Solicitors Regulation Authority. The Defendant argues that the Claimant's conduct in pursing consumers through the small claims track, using an automated system is against the public interest and not something the courts should be seen to support.
9. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where a claim was struck out without a hearing, due to Gladstones' template particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. The Practice Direction also sets out the following example which is analogous to this claim: ‘those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.’
Failure to comply with the procedural requirements of POFA 2012
10. No evidence has been supplied by the Claimant as to who parked the vehicle. The Defendant did not wish to, and was under no legal obligation to, provide the name of the driver to the Claimant. The Defendant also did not expressly advise the Claimant of his status as either driver or keeper in the initial formal challenge or subsequent appeal, as he was not aware of the significance of the distinction, or the procedural implications.
11. Keeper liability has not passed in accordance with Protection of Freedoms Act 2012 Schedule 4 (also referred to as PoFA). For the Claimant to recover the parking charge from the Defendant, the Claimant must have followed the strict requirements in the PoFA 2012 Schedule 4, which provides that liability can be transferred from driver to keeper. The Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver. This distinguishes the case from Elliott v Loake [1982] in which there was irrefutable evidence of the driver’s identity. PoFA 2012 Schedule 4 has not been complied with and the claimant may not quote reasonable assumption. In the case of Excel v Mr L. (17/11/2016, Skipton), the judge dismissed the claim, summing up that: ether the claimant could prove the defendant was the driver, which they could not; or the claimant could comply with PoFA to pursue the defendant as the keeper, which it was proved they did not. In POPLA’s ‘Annual Report of the Lead Adjudicator 2015’, on ‘Understanding Keeper Liability’, the expert opinion of PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, was that:
‘However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant.’
12. Schedule 4 paragraphs 8 and 9 of the PoFA stipulate the mandatory information that must be included in the Notice to Keeper. If all this information is not present, then the Notice to Keeper is invalid.
13. A Notice to Keeper was never received. The Claimants failure to comply with the procedural requirements of POFA 2012 means that the registered keeper cannot be held to account for the alleged debt of the driver. Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper:
(Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
The date of the alleged Parking Charge Notice was 28/06/2016; to comply the latest date of which the Notice to Keeper should have been sent was 23/08/2016. As such, the Defendant has no liability in law and the court is invited to strike out this claim with immediate effect.
14. Paragraph 11 of Schedule 4 of the PoFA sets out a further statutory requirement for the Claimant to seek keeper liability. The Defendant has received confirmation from the Driver & Vehicle Licensing Agency that it has never released any information regarding a parking charge on the Defendant’s vehicle. As such, the Defendant has no liability in law and the court is invited to strike out this claim with immediate effect.
No invitation to park on certain terms
15. 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
16. 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.
17. The term, 'Vehicles must fully display a valid pay and display ticket in the front windscreen so all details can be inspected', in particular the meaning of 'fully display' and 'all details', 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. A valid ticket was displayed in the front windscreen of the Defendant’s vehicle and a ticket reference was clearly visible. 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.
18. The Claimant gave the following definition of a valid ticket in their internal appeal refusal letter:
'For a pay and display ticket to be valid it must be displayed face up clearly showing the date and expiry time by attaching to window.’
No signs or terms required the use of adhesives to affix the ticket to the window, the term to display a ticket ‘in the front windscreen’ does not require the use of adhesive to affix the ticket. Furthermore, the requirements for displaying a ticket upon which the Claimant rejected the appeal, cannot be incorporated as the contract was already concluded, per Lord Denning in Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163:
‘[T]he offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance takes place when the customer puts his money into the slot. The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money. The customer is bound by those terms as long as they are sufficiently brought to his notice before-hand, but not otherwise. He is not bound by the terms printed on the ticket if they differ from the notice, because the ticket comes too late. The contract has already been made.’
19. 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:
‘In DB05057D the adjudicator said: “…having seen the original ticket I note that it is made of rather thin paper which is likely to be dislodged when a car door is shut. It may be that the Council would argue that it is the driver's responsibility to ensure that the ticket is on display when the vehicle is left, but on the other hand if it chooses to issue pay and display tickets made of such thin paper it must expect that now and again this type of situation will arise.”
In HV05040D the adjudicator accepted the appellant’s evidence that she had displayed the ticket on the dash and checked after closing the door that it was still there. He said: “I am not aware of any signs in the car park suggesting the use of adhesives by motorists when parking their cars."’
20. In this case the Defendant asserts that it is reasonable for a consumer to believe that the terms which specify the main subject matter of the contract are those emphasised as terms and conditions on the signage in red, bulleted text, given the distinct formatting and semantics. The term that ‘Retrospective evidence of authority to park will not be accepted’ does not specify the main subject matter of the contract. It cannot therefore be excluded from an assessment of fairness per Section 64(1) of the CRA 2015.
21. The term that ‘Retrospective evidence of authority to park will not be accepted’ falls within the 'grey list' of terms which may be regarded as unfair under Schedule 2 Part 1 of the CRA 2015, paragraph 20 (referred to in Section 63(1) of the CRA 2015), as it restricts the evidence available to the Defendant to defend the charge. It raises a presumption that the term is unfair.
22. The meaning of the term is unclear. It is not clear what is meant by 'retrospective evidence' in this context. It does not specify in what context any evidence of authority to park would not be accepted, whether on appeal or in any other circumstance. Section 69 of the CRA 2015 provides for the application of the contra proferentem rule and the Defendant invites the Court to take this into account when determining the fairness of the term.
23. This term is not prominent on the signage. In addition, the statement that ‘By parking and remaining on this land, you the driver, accept liability to pay the parking charge for any failure to comply with the terms and conditions contained within this sign’, is not prominent. It was held in Thornton v Shoe Lane Parking Ltd that the terms of the offer can only be those those placed near the machine, sufficiently brought to the customer's attention.
24. Furthermore, to exclude evidence makes it an unfair term, in that it creates a significant imbalance, contrary to the requirements of good faith, to the detriment of consumers. It was held in Munkenbeck & Marshall v Harold [2005] EWHC 356 (TCC), [2005] All ER (D) 227 (Apr) that where a term is one-sided and its terms have not been sufficiently drawn to the attention of the consumer, the term is more likely to be held to be an unfair term.
25. Section 62(1) of the Consumer Rights Act 2015 establishes that an unfair term of a consumer contract is not binding on the consumer. In the event that the Court decides this is a consumer notice rather than a contract, Section 62(2) applies. The Defendant invites the Court to rule accordingly.
Locus standi
26. The Claimant has no standing to bring this claim, or in the alternative the doctrine of privity applies and the Claimant is not privy to a contract that is between the landowner and the defendant. The proper Claimant is the landowner. In not responding to my requests for information, the Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. The Defendant has reasonable belief that a statutory assignment has not taken place, therefore per Viscount Haldane’s judgement in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, the Claimant may only sue on the contract as an agent if consideration has been given by the landowner personally or through the Claimant acting as agent; no such consideration flows as the Claimant does not receive payment from the landowner to manage the site in the landowner’s commercial interest, does not receive any proceeds from the sale of tickets, and does not offer parking as consideration for the Defendant’s payment for a licence to park. The Claimant’s business model is solely driven by the recovery of penalty fees. Strict proof is required that there is an assignment of contractual rights leading from the landowner to KBT Cornwall Ltd T/as Armtrac Security Services. The Defendant has reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case, per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd. The Defendant also has reasonable belief that the tests of enforceability for the Contracts (Rights of Third Parties) Act 1999 have not been met. The Claimant has failed to establish an express conferral pursuant to section 1(1)(a) and section 1(3), which requires precise terms which identify the Claimant, and which expressly state that the Claimant has the ‘right to enforce the contract’ or the ‘right to sue’, or even to demonstrate an implied conferral per section(1)(1)(b) and section 1(3), which requires a term to expressly confer a benefit on the Claimant and for the Claimant to be specifically named, noting that it is not a benefit if the Claimant’s position is merely improved if the contract is performed (A Burrows, ‘The Contracts (Right of Third Parties) Act 1999 and its implications for commercial contracts’ [2000] LMCLQ 540, 542-546). Furthermore as per Trendtex Trading Corporation v Credit Suisse [1982] AC 679, a mere right to sue for damages is not assignable unless the assignee has a genuine commercial interest in taking the assignment; and Lords Neuberger and Sumption’s judgement (at [28]), in Parking Eye Ltd v Beavis [2015] UKSC 67, shows that the Claimant does not have a wider legitimate interest extending beyond the prospect of damages, as their interest is only limited to the recovery of compensation for the alleged breach of contract, and no commercial interest has engaged as to the control of parking as the Defendant had paid for a licence to park.
No advertisement consent for parking signs
27. It is denied that the signs on display fall under any of the classes in Schedule 1 or Schedule 3 of The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 or that the Claimant has advertisement consent for the signs. The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs. The Cornwall County Council Planning Register does not show any such applications in its planning history. In the absence of strict proof I have reasonable belief that the Claimant was committing an offence and therefore no contract could have been entered into.
Trespass
28. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. In the event that a trespass claim is brought by the Claimant, the Defendant parked on land where parking was invited and paid for full authority to park, and did not overstay. Trespass cannot therefore apply. Furthermore, the Defendant has reasonable belief that the Claimant does not have a contractual or proprietary right to occupy or possess the car park per Hill v Tupper [1863] 2 H & C 121; the landowner has not assigned rights to enable the Claimant to pursue a case under the tort of trespass. In any event, the Defendant’s sole liability would be damages in favour of the landowner. Per the Supreme Court in the case of Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case), trespass is limited to the landowner themselves claiming for a nominal sum.
Applicability of ParkingEye Ltd v Beavis [2015] UKSC 67
29. The Claimant might argue that the Supreme Court’s landmark decision in the Beavis case is applicable.
30. This case is not supported by any similarity in the circumstances or signage. Mr Beavis refused to pay a charge of £85 for overstaying a permitted period of free parking in a car park at a retail park. The signs displaying this information were accepted to be large, prominent and legible. The notice stated ‘2 hour max stay… Failure to comply … will result in a Parking Charge of £85.’ Mr Beavis exceeded the time limit by one hour but declined to pay the charge and maintained the term which sought to impose the charge was an unfair term. The Beavis case does not assist the claimant and in fact, supports my defence.
The agreed damages clause is a penalty
31. The signage provides for a parking charge of £100 if the terms and conditions of parking are breached. The Claimant seeks £150 which is an extravagant and unconscionable penalty, and therefore unenforceable.
32. In ParkingEye Ltd v Beavis the Supreme Court recast the test to be applied when seeking to distinguish a liquidated damages clause from a penalty clause. To engage a penalty the question was whether the relevant provision was “unconscionable” or “extravagant” (Lord Hodge at [221]). The full test was expounded by Lord Hodge (at [255]).
33. The Supreme Court was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable (ParkingEye v Somerfield). The charge to the Defendant of £150 is evidently extravagant and unconscionable in that it is disproportionate to the Claimant’s interest, and disproportionate to the highest level of damages that could possibly arise from the Defendant’s alleged breach of contract.
34. The Defendant therefore disputes the amount claimed, as it comprises excessive and non-contractual elements, and additional costs must be proved. With reference to paragraph 31, the Claimant claims a sum of £150 as a ‘parking charge’ (for which liability is denied), which includes £50 that the claimant has untruthfully presented as contractual charges, which amounts to double charging.
35. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge before a Notice to Keeper is issued. In any event the Protection of Freedoms Act is clear that a vehicle keeper would only be liable for the amount of the penalty charge notice, and no further costs.
36. The Claimant has claimed a £50 legal representative’s cost on the claim form, despite being well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims Court. The Defendant also has the reasonable belief that the charges have not been invoiced and/or paid. The Defendant also has a good faith belief that due to the sparse particulars the £50 claimed for filing the claim has not been incurred. This appears to be an attempt at double recovery as a way to inflate the value of the claim. The solicitor has been incompetent and is not due £50. In the alternative, the Claimant is put to strict proof to show how this cost has been incurred.
37. Furthermore, the Claimant claims interest from XX/XX/16. The IAS parking adjudicator had not given their decision on appeal until XX/XX/16, and the disputed charge was due to be paid within 16 days of that decision. Interest should therefore not be claimed until XX/XX/2016, when the disputed charge was due following IAS adjudication.
38. The Defendant invites the court to strike out the claim for the above grounds.
Statement of Truth
39. I believe that the facts stated in this Witness Statement are true.
Dated this xxth day of Xxxxx 2017w
I received a PCN from a private parking company and am now being sued on their behalf by Gladstones.
I have submitted my Defence and have recently received an email from Gladstones, purporting to include a complete Directions Questionnaire (most of it was blank) and making a 'special direction' that it be heard on the papers. I haven't had anything from the Court Business Centre yet, but I will contest the special direction.
I've pasted a revised copy of my Defence below, I've expanded it to include more case references. I'd be grateful for your feedback. I'm not sure if this now forms my witness statement or my skeleton argument, or both? Do I have to provide all my references and cases in the form of exhibits?
I welcome your feedback and suggestions. This is my first time as a defendant in the small claims process.
STATEMENT OF DEFENCE
1. I am the defendant in this matter.
2. It is admitted that the Defendant is the registered keeper of the vehicle in question. However, the Defendant denies that he is liable to the Claimant either as alleged in the Particulars of Claim or at all. Each and every allegation in the Particulars of Claim is denied.
3. The Claimant has no cause of action against the Defendant on the following grounds:
4. A ticket was paid for and displayed so all details could be seen, until it was dislodged by a gust of wind, although the Defendant has no knowledge of the point at which the ticket flipped over or why. The ticket gave the Defendant a licence to park for the entire day, from 09:00am on XX/XX/16, covering the time and date relating to the disputed charge. The ticket was marked with the reference XXXXX on the rear of the ticket, which will be demonstrated by the Claimant’s own evidence.
Non-disclosure of reasonable grounds or particulars for bringing a claim
5. The Claimant has not complied with the pre-court protocol and has not disclosed reasonable grounds for bringing a claim.
6. There was no compliant Letter Before County Court Claim, under the Practice Direction, meaning the Defendant could not compile a Formal Response.
7. The Particulars of Claim fail to fulfil CPR Part 16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description; it fails to establish a cause of action which would enable the Defendant to prepare a specific defence:
‘-- DATE – DESCRIPTION -- AMOUNT --DUE DATE
XX/XX/XX MY VRN/PCN £150 XX/XX/XX
Total due - £150
AND THE CLAIMANT CLAIMS
The Claimant claims the sum of £154.21 for
Parking charges and indemnity costs if
applicable including £4.21 interest pursuant
to S.69 of the County Courts Act 1984 Rate
8.00% pa from dates above to 01/12/2016
Same rate to Judgment or (sooner) payment
Daily rate to Judgment £0.03
Total debt and interest £154.21’
8. The Particulars of Claim provide no information regarding why the charge arose, what the original charge was, what the alleged contract was, whether the clam is brought for breach of contract or trespass, nor anything which could be considered a fair exchange of information. The Claimant’s solicitor has not stated on the claim form that particulars of claim will follow. The Defendant wrote to the Claimant’s solicitor on the Xx Xxxxx 2016, the xx xxxxxx 2016, and on xx xxxxxx 2016 with a Part 18 Request, to clarify issues but the Claimant and their solicitors declined to respond to the requests with a compliant response. The Defendant has therefore had to cover all possible defences, causing significant distress and denying a fair chance to defend the claim. The Claimant's solicitor is known to be a serial issuer of particulars of claim which arise from an automated template, with no due diligence, and is believed to be the subject of an active investigation by the Solicitors Regulation Authority. The Defendant argues that the Claimant's conduct in pursing consumers through the small claims track, using an automated system is against the public interest and not something the courts should be seen to support.
9. The Defendant invites the court to strike out or dismiss the claim under Rule 3.4(2)(a) of PRACTICE DIRECTION 3A as having not set out a concise statement of the nature of the claim or disclosed reasonable grounds or particulars for bringing a claim (Part 16.4(1)(a) and PRACTICE DIRECTION 16 paragraphs 3.1-3.8). In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where a claim was struck out without a hearing, due to Gladstones' template particulars being incoherent, failing to comply with CPR16.4, and ''providing no facts that could give rise to any apparent claim in law''. The Practice Direction also sets out the following example which is analogous to this claim: ‘those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’.’
Failure to comply with the procedural requirements of POFA 2012
10. No evidence has been supplied by the Claimant as to who parked the vehicle. The Defendant did not wish to, and was under no legal obligation to, provide the name of the driver to the Claimant. The Defendant also did not expressly advise the Claimant of his status as either driver or keeper in the initial formal challenge or subsequent appeal, as he was not aware of the significance of the distinction, or the procedural implications.
11. Keeper liability has not passed in accordance with Protection of Freedoms Act 2012 Schedule 4 (also referred to as PoFA). For the Claimant to recover the parking charge from the Defendant, the Claimant must have followed the strict requirements in the PoFA 2012 Schedule 4, which provides that liability can be transferred from driver to keeper. The Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver. This distinguishes the case from Elliott v Loake [1982] in which there was irrefutable evidence of the driver’s identity. PoFA 2012 Schedule 4 has not been complied with and the claimant may not quote reasonable assumption. In the case of Excel v Mr L. (17/11/2016, Skipton), the judge dismissed the claim, summing up that: ether the claimant could prove the defendant was the driver, which they could not; or the claimant could comply with PoFA to pursue the defendant as the keeper, which it was proved they did not. In POPLA’s ‘Annual Report of the Lead Adjudicator 2015’, on ‘Understanding Keeper Liability’, the expert opinion of PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, was that:
‘However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant.’
12. Schedule 4 paragraphs 8 and 9 of the PoFA stipulate the mandatory information that must be included in the Notice to Keeper. If all this information is not present, then the Notice to Keeper is invalid.
13. A Notice to Keeper was never received. The Claimants failure to comply with the procedural requirements of POFA 2012 means that the registered keeper cannot be held to account for the alleged debt of the driver. Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper:
(Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
The date of the alleged Parking Charge Notice was 28/06/2016; to comply the latest date of which the Notice to Keeper should have been sent was 23/08/2016. As such, the Defendant has no liability in law and the court is invited to strike out this claim with immediate effect.
14. Paragraph 11 of Schedule 4 of the PoFA sets out a further statutory requirement for the Claimant to seek keeper liability. The Defendant has received confirmation from the Driver & Vehicle Licensing Agency that it has never released any information regarding a parking charge on the Defendant’s vehicle. As such, the Defendant has no liability in law and the court is invited to strike out this claim with immediate effect.
No invitation to park on certain terms
15. 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
16. 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.
17. The term, 'Vehicles must fully display a valid pay and display ticket in the front windscreen so all details can be inspected', in particular the meaning of 'fully display' and 'all details', 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. A valid ticket was displayed in the front windscreen of the Defendant’s vehicle and a ticket reference was clearly visible. 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.
18. The Claimant gave the following definition of a valid ticket in their internal appeal refusal letter:
'For a pay and display ticket to be valid it must be displayed face up clearly showing the date and expiry time by attaching to window.’
No signs or terms required the use of adhesives to affix the ticket to the window, the term to display a ticket ‘in the front windscreen’ does not require the use of adhesive to affix the ticket. Furthermore, the requirements for displaying a ticket upon which the Claimant rejected the appeal, cannot be incorporated as the contract was already concluded, per Lord Denning in Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163:
‘[T]he offer is made when the proprietor of the machine holds it out as being ready to receive the money. The acceptance takes place when the customer puts his money into the slot. The terms of the offer are contained in the notice placed on or near the machine stating what is offered for the money. The customer is bound by those terms as long as they are sufficiently brought to his notice before-hand, but not otherwise. He is not bound by the terms printed on the ticket if they differ from the notice, because the ticket comes too late. The contract has already been made.’
19. 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:
‘In DB05057D the adjudicator said: “…having seen the original ticket I note that it is made of rather thin paper which is likely to be dislodged when a car door is shut. It may be that the Council would argue that it is the driver's responsibility to ensure that the ticket is on display when the vehicle is left, but on the other hand if it chooses to issue pay and display tickets made of such thin paper it must expect that now and again this type of situation will arise.”
In HV05040D the adjudicator accepted the appellant’s evidence that she had displayed the ticket on the dash and checked after closing the door that it was still there. He said: “I am not aware of any signs in the car park suggesting the use of adhesives by motorists when parking their cars."’
20. In this case the Defendant asserts that it is reasonable for a consumer to believe that the terms which specify the main subject matter of the contract are those emphasised as terms and conditions on the signage in red, bulleted text, given the distinct formatting and semantics. The term that ‘Retrospective evidence of authority to park will not be accepted’ does not specify the main subject matter of the contract. It cannot therefore be excluded from an assessment of fairness per Section 64(1) of the CRA 2015.
21. The term that ‘Retrospective evidence of authority to park will not be accepted’ falls within the 'grey list' of terms which may be regarded as unfair under Schedule 2 Part 1 of the CRA 2015, paragraph 20 (referred to in Section 63(1) of the CRA 2015), as it restricts the evidence available to the Defendant to defend the charge. It raises a presumption that the term is unfair.
22. The meaning of the term is unclear. It is not clear what is meant by 'retrospective evidence' in this context. It does not specify in what context any evidence of authority to park would not be accepted, whether on appeal or in any other circumstance. Section 69 of the CRA 2015 provides for the application of the contra proferentem rule and the Defendant invites the Court to take this into account when determining the fairness of the term.
23. This term is not prominent on the signage. In addition, the statement that ‘By parking and remaining on this land, you the driver, accept liability to pay the parking charge for any failure to comply with the terms and conditions contained within this sign’, is not prominent. It was held in Thornton v Shoe Lane Parking Ltd that the terms of the offer can only be those those placed near the machine, sufficiently brought to the customer's attention.
24. Furthermore, to exclude evidence makes it an unfair term, in that it creates a significant imbalance, contrary to the requirements of good faith, to the detriment of consumers. It was held in Munkenbeck & Marshall v Harold [2005] EWHC 356 (TCC), [2005] All ER (D) 227 (Apr) that where a term is one-sided and its terms have not been sufficiently drawn to the attention of the consumer, the term is more likely to be held to be an unfair term.
25. Section 62(1) of the Consumer Rights Act 2015 establishes that an unfair term of a consumer contract is not binding on the consumer. In the event that the Court decides this is a consumer notice rather than a contract, Section 62(2) applies. The Defendant invites the Court to rule accordingly.
Locus standi
26. The Claimant has no standing to bring this claim, or in the alternative the doctrine of privity applies and the Claimant is not privy to a contract that is between the landowner and the defendant. The proper Claimant is the landowner. In not responding to my requests for information, the Claimant has failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. The Defendant has reasonable belief that a statutory assignment has not taken place, therefore per Viscount Haldane’s judgement in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, the Claimant may only sue on the contract as an agent if consideration has been given by the landowner personally or through the Claimant acting as agent; no such consideration flows as the Claimant does not receive payment from the landowner to manage the site in the landowner’s commercial interest, does not receive any proceeds from the sale of tickets, and does not offer parking as consideration for the Defendant’s payment for a licence to park. The Claimant’s business model is solely driven by the recovery of penalty fees. Strict proof is required that there is an assignment of contractual rights leading from the landowner to KBT Cornwall Ltd T/as Armtrac Security Services. The Defendant has reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case, per Tweddle v Atkinson [1861] 1B &S 393, as confirmed by the House of Lords in Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd. The Defendant also has reasonable belief that the tests of enforceability for the Contracts (Rights of Third Parties) Act 1999 have not been met. The Claimant has failed to establish an express conferral pursuant to section 1(1)(a) and section 1(3), which requires precise terms which identify the Claimant, and which expressly state that the Claimant has the ‘right to enforce the contract’ or the ‘right to sue’, or even to demonstrate an implied conferral per section(1)(1)(b) and section 1(3), which requires a term to expressly confer a benefit on the Claimant and for the Claimant to be specifically named, noting that it is not a benefit if the Claimant’s position is merely improved if the contract is performed (A Burrows, ‘The Contracts (Right of Third Parties) Act 1999 and its implications for commercial contracts’ [2000] LMCLQ 540, 542-546). Furthermore as per Trendtex Trading Corporation v Credit Suisse [1982] AC 679, a mere right to sue for damages is not assignable unless the assignee has a genuine commercial interest in taking the assignment; and Lords Neuberger and Sumption’s judgement (at [28]), in Parking Eye Ltd v Beavis [2015] UKSC 67, shows that the Claimant does not have a wider legitimate interest extending beyond the prospect of damages, as their interest is only limited to the recovery of compensation for the alleged breach of contract, and no commercial interest has engaged as to the control of parking as the Defendant had paid for a licence to park.
No advertisement consent for parking signs
27. It is denied that the signs on display fall under any of the classes in Schedule 1 or Schedule 3 of The Town and Country Planning (Control of Advertisements) (England) Regulations 2007 or that the Claimant has advertisement consent for the signs. The Claimant is put to strict proof that at the time of the alleged event they had both advertisement consent and the permission from the site owner to display the signs. The Cornwall County Council Planning Register does not show any such applications in its planning history. In the absence of strict proof I have reasonable belief that the Claimant was committing an offence and therefore no contract could have been entered into.
Trespass
28. The Particulars of Claim are deficient in establishing whether the claim is brought in trespass. In the event that a trespass claim is brought by the Claimant, the Defendant parked on land where parking was invited and paid for full authority to park, and did not overstay. Trespass cannot therefore apply. Furthermore, the Defendant has reasonable belief that the Claimant does not have a contractual or proprietary right to occupy or possess the car park per Hill v Tupper [1863] 2 H & C 121; the landowner has not assigned rights to enable the Claimant to pursue a case under the tort of trespass. In any event, the Defendant’s sole liability would be damages in favour of the landowner. Per the Supreme Court in the case of Cavendish Square Holding BV v Talal El Makdessi and ParkingEye Ltd v Beavis [2015] UKSC 67 (the Beavis case), trespass is limited to the landowner themselves claiming for a nominal sum.
Applicability of ParkingEye Ltd v Beavis [2015] UKSC 67
29. The Claimant might argue that the Supreme Court’s landmark decision in the Beavis case is applicable.
30. This case is not supported by any similarity in the circumstances or signage. Mr Beavis refused to pay a charge of £85 for overstaying a permitted period of free parking in a car park at a retail park. The signs displaying this information were accepted to be large, prominent and legible. The notice stated ‘2 hour max stay… Failure to comply … will result in a Parking Charge of £85.’ Mr Beavis exceeded the time limit by one hour but declined to pay the charge and maintained the term which sought to impose the charge was an unfair term. The Beavis case does not assist the claimant and in fact, supports my defence.
The agreed damages clause is a penalty
31. The signage provides for a parking charge of £100 if the terms and conditions of parking are breached. The Claimant seeks £150 which is an extravagant and unconscionable penalty, and therefore unenforceable.
32. In ParkingEye Ltd v Beavis the Supreme Court recast the test to be applied when seeking to distinguish a liquidated damages clause from a penalty clause. To engage a penalty the question was whether the relevant provision was “unconscionable” or “extravagant” (Lord Hodge at [221]). The full test was expounded by Lord Hodge (at [255]).
33. The Supreme Court was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable (ParkingEye v Somerfield). The charge to the Defendant of £150 is evidently extravagant and unconscionable in that it is disproportionate to the Claimant’s interest, and disproportionate to the highest level of damages that could possibly arise from the Defendant’s alleged breach of contract.
34. The Defendant therefore disputes the amount claimed, as it comprises excessive and non-contractual elements, and additional costs must be proved. With reference to paragraph 31, the Claimant claims a sum of £150 as a ‘parking charge’ (for which liability is denied), which includes £50 that the claimant has untruthfully presented as contractual charges, which amounts to double charging.
35. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge before a Notice to Keeper is issued. In any event the Protection of Freedoms Act is clear that a vehicle keeper would only be liable for the amount of the penalty charge notice, and no further costs.
36. The Claimant has claimed a £50 legal representative’s cost on the claim form, despite being well aware that CPR 27.14 does not permit such charges to be recovered in the Small Claims Court. The Defendant also has the reasonable belief that the charges have not been invoiced and/or paid. The Defendant also has a good faith belief that due to the sparse particulars the £50 claimed for filing the claim has not been incurred. This appears to be an attempt at double recovery as a way to inflate the value of the claim. The solicitor has been incompetent and is not due £50. In the alternative, the Claimant is put to strict proof to show how this cost has been incurred.
37. Furthermore, the Claimant claims interest from XX/XX/16. The IAS parking adjudicator had not given their decision on appeal until XX/XX/16, and the disputed charge was due to be paid within 16 days of that decision. Interest should therefore not be claimed until XX/XX/2016, when the disputed charge was due following IAS adjudication.
38. The Defendant invites the court to strike out the claim for the above grounds.
Statement of Truth
39. I believe that the facts stated in this Witness Statement are true.
Dated this xxth day of Xxxxx 2017w
0
Comments
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I have submitted my Defence and have recently received an email from Gladstones, purporting to include a complete Directions Questionnaire (most of it was blank) and making a 'special direction' that it be heard on the papers. I haven't had anything from the Court Business Centre yet, but I will contest the special direction.
Good, take a look at hopsfield's thread and the one by Gin and Milk for a covering letter to robustly refuse that, when returning your DQ.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Defence looks good at a cursory skim.
I think anything that helps the judge is useful to put in, so providing the cases and references isn't a bad thing to do.
You may get a Directions Hearing initially - or not.
I assume you will ask the court for it to be heard local to you.
Do you even need a skeleton argument in small claims? Your Defence is usually sufficient - and does amount to a Witness Statement.
Do more headings in bold every few paragraphs, use a large/legible font and space everything out. You could bold any references/cases/sources etc.0 -
You are miles off needing a WS and Skeleton. It takes about 5 - 6 months until you get to that stage.have recently received an email from Gladstones, purporting to include a complete Directions Questionnaire
You will get your own Directions Questionnaire from the court and see how to complete it here/ See Item 4 in the first posting.
http://forums.moneysavingexpert.com/showthread.php?t=5546325
Once you have done that get their information off them by sending a Subject Access Request. At this stage, you should also decide if you want a papers-only hearing or a day in court.0 -
Op, 1st off, congratulations for such thorough reading and prep. Heartening for regulars here to see.
I'd lose the "gust of wind" wording. You don't know this was responsible. If you did, the obvious riposte would be 'Why didn't you flip it back, secure it?'
Scumpany employees are hot air merchants in more ways than one.
#
Pedant's point:-). No.38, 'on' the above grounds , not 'for'.CAP[UK]for FREE EXPERT DEBT &BUDGET HELP:
01274 760721, freephone0800 328 0006'People don't want much. They want: "Someone to love, somewhere to live, somewhere to work and something to hope for."
Norman Kirk, NZLP- Prime Minister, 1972
***JE SUIS CHARLIE***
'It is difficult to free fools from the chains they revere' François-Marie AROUET
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Yep, lose the 'gust of wind flipping the ticket over' assumption...as the driver displayed it when parking, they cannot be held responsible for a later matter which could just as easily have been caused by the attendant 'leaning' on/across the car when looking at the dashboard.
I wrote a defence once that was about a nasty ex-clamper firm and included the thought that it as not long ago (2012) that rogue clampers used to rock cars to dislodge permits. However, the Defendant would not presume to suggest this is the case in this instance and the Claimant operator (knowing the P&D ticket was paid and displayed from the account in the original appeal) should extend the driver the same courtesy, as opposed to extending blame for an incident most likely caused by adverse weather conditions in Winter (force majeure) a situation which cannot be held to be the fault of one or other party and which cannot give rise to a penalty, for the profit of the Claimant.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top of this/any page where it says:
Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
8)
You put clam not claim0 -
Only in line 2 though, later no.8 mentions fine.CAP[UK]for FREE EXPERT DEBT &BUDGET HELP:
01274 760721, freephone0800 328 0006'People don't want much. They want: "Someone to love, somewhere to live, somewhere to work and something to hope for."
Norman Kirk, NZLP- Prime Minister, 1972
***JE SUIS CHARLIE***
'It is difficult to free fools from the chains they revere' François-Marie AROUET
0 -
Thank you for your very helpful input everyone. I sent the following letter with my N180 and copied both to Gstones.
"FORMAL OBJECTION TO THE CLAIMANT'S ''REQUEST FOR SPECIAL DIRECTION''
The Claimant has informed the Defendant that it has proposed a hearing on the papers because it considers the matter to be relatively straightforward. The Defendant objects strongly to these proposals.
The Defendant denies that the matter is relatively straightforward.
As a litigant in person, the Defendant would be disadvantaged against the claimant, a parking company that has employed its trade association's solicitor to prepare its documents.
The Defendant intends to submit an application notice for an order under CPR Rule 3.4(2) and Rule 24.2. Should an order not be upheld by the Court, and should the case then proceed to the County Court, the Defendant will in particular wish to question the Claimant's witnesses regarding: the basis of its cause of action, which is not disclosed in the particulars of claim; the Claimant’s failure to establish keeper liability under POFA 2012; the Claimant’s legal standing to bring a claim and sue in their own right; whether they can demonstrate consent for their advertisements; and that additional costs have actually been incurred and are not an attempt at double recovery.
The Defendant requests that the matter is transferred to his local court in accordance with the Civil Procedure Rules when the Defendant is a consumer."
I'm just waiting to hear from the Court now. Starting to prepare my Court bundle too.
Can anyone advise me on how I should word my application to the Court for an Order under CPR 3.4(2) and 24.2 please, and what the process is? In addition, what the application notice should state to Gstones?0 -
Thought I'd build on my last point. I haven't seen any guidance on any forums about how you can make an application to the Court to strike out the claim under CPR rules 3.4(2) and 24.2. I am determined to do so, but I want to follow procedure to ensure it is filed properly and considered.
Has anyone done this please, and can they advise me on the wording of the application to the Court, and the wording of the application notice, which needs to be served on the Claimant?
I've drafted the following for the application to the Court:
"CLAIM NUMBER: [redacted]
BETWEEN: [redacted]
FULL NAME OF LITIGANT AND ADDRESS: [redacted]
Dear Sir/Madam,
APPLICATION FOR AN ORDER UNDER CPR RULE 3.4(2) AND RULE 24.2.
I am writing to submit an application for an order under CPR Rule 3.4(2) and Rule 24.2. I request that the application is dealt with by a hearing at my local court.
Order under CPR Rule 3.4(2).
I invite the court to strike out the whole of the statement of case for disclosing no reasonable grounds for bringing or defending a claim (rule 3.4(2)(a)).
The Claimant has not set out a clear and concise statement of the nature of his claim as required by CPR 16.4(1)(a). The particulars of claim do not disclose reasonable grounds or a cause of action for bringing a claim. Practice Direction 16 7.5 states that ‘where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.’
Practice Direction 3A 1.4 provides examples of cases where the court may conclude that particulars of claim fall within Rule 3.4(2)(a):
‘(1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’,
(2) those which are incoherent and make no sense,
(3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.’
I invite the court to strike out the case for an abuse of the process of the court (rule 3.4(2)(b).
The claim is ill-founded. The Claimant's solicitor is a serial issuer of particulars of claim which arise from an automated template. The Claimant's conduct in pursuing consumers through the small claims track, using an automated system, is an abuse of the process of the court. It is against the public interest and I contend is therefore not something the courts should be seen to support.
Evidence
The Particulars of Claim are as follows:
‘-- DATE – DESCRIPTION -- AMOUNT --DUE DATE
[redacted]
Total due - £150
AND THE CLAIMANT CLAIMS
The Claimant claims the sum of £154.21 for
Parking charges and indemnity costs if
applicable including £4.21 interest pursuant
to S.69 of the County Courts Act 1984 Rate
8.00% pa from dates above to 01/12/2016
Same rate to Judgment or (sooner) payment
Daily rate to Judgment £0.03
Total debt and interest £154.21’
The Claimant’s solicitor has not stated on the claim form that particulars of claim will follow (Practice Direction 16 3.3).
I wrote to the Claimant’s solicitor on [redacted], [redacted], and on [redacted] with a Part 18 Request, to clarify issues but the Claimant and their solicitors declined to respond to the requests with a compliant response.
In C3GF84Y (Mason, Plymouth County Court), the judge struck out the claim brought by KBT Cornwall Ltd as Gladstones Solicitors had not submitted proper Particulars of Claim, and similar reasons were cited by District Judge Cross of St Albans County Court on 20/09/16 where a claim was struck out without a hearing, due to Gladstones' template particulars being incoherent, failing to comply with CPR 16.4, and ''providing no facts that could give rise to any apparent claim in law''.
The particulars of claim in this case are legally unrecognisable (per Mr Justice Mostyn in Dellal -v- Dellal [2015] EWHC 907 (Fam)), are incoherent and make no sense.
Order under CPR Rule 24.2.
I invite the court to give summary judgement against the claimant for having no prospect of success and being bound to fail because of a point of law (CPR Rule 24.2).
I am the keeper of the vehicle [redacted], to which the claim relates. The terms of the parking contract provide for driver liability, and a ‘notice to driver’ was served. However, I did not wish to, and was under no legal obligation to, provide the name of the driver to the Claimant.
Not having received an admission as to who was driving, the Claimant has not thereafter acquired any right to pursue me in my capacity as registered keeper of the vehicle. Keeper liability has not passed in accordance with Protection of Freedoms Act 2012 Schedule 4. Schedule 4 paragraphs 8(5) or 9(5) of the Act specify the time limits for serving a Notice to Keeper.
Evidence
The date of the alleged Parking Charge Notice was [redacted]; to comply the latest date of which the Notice to Keeper should have been sent was [redacted]. A Notice to Keeper has not been served. Furthermore, the Defendant has received confirmation from the Driver & Vehicle Licensing Agency that it has never released any information regarding a parking charge on the Defendant’s vehicle.
In Dellal -v- Dellal [2015] EWHC 907 (Fam) Mr Justice Mostyn (at 24), applied the test in Swain v Hillman [2001] 1 All ER 91: "The words 'no real prospect of succeeding' do not need any amplification, they speak for themselves. The word "real" distinguishes fanciful prospects of success or ... they direct the court to the need to see whether there is a "realistic" as opposed to a "fanciful" prospect of success."
In Easy Air Limited v Opal Telecom Limited [2009] EWHC 339 (Ch), Lewison J (at 15) clarified that: “A “realistic” claim is one that carries some degree of conviction. This means that a claim is more than merely arguable.
The Claimant will not be able to add to or alter the evidence in this regard, and therefore the case should not proceed further (per Royal Brompton NHS Trust v Hammond (No 5) [2001] EWCA Civ 550).
Statement of Truth
I believe that the facts stated in this application are true."0 -
I'm no expert at all, but you haven't heard whether or not you can have your case heard at your local court yet, so are you now in the process of asking your local county court to strike out the claim, or have I misunderstood?
I haven't heard of anyone having their request for a hearing to take place at their local court denied, and whilst I don't see why your case should be any different it might be unwise to automatically assume they will honour your request.
Have you looked at Pepipoo to see if anyone else has applied to have their case struck out? It might be worth a look as I'm sure some will have done it.
Good luck0
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