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  • FIRST POST
    • another victim
    • By another victim 17th Mar 17, 2:30 PM
    • 5Posts
    • 6Thanks
    another victim
    At N1 form stage, advice needed on defence...
    • #1
    • 17th Mar 17, 2:30 PM
    At N1 form stage, advice needed on defence... 17th Mar 17 at 2:30 PM
    Dear all,

    What a wonderful resource this is, and all credit to those who take so much time to respond to people like me looking for help - thank you in advance!

    A brief summary of where I am:
    1. PCN issued by Excel Parking Services in April 2014 in The Walk Ebbw Vale from an ANPR camera.
    2. I am the registered keeper, but was not the driver of the vehicle.
    3. I responded to the PCN stating that I was not the driver, and whilst not required to, I provided the name and address of the driver, who was in the UK on holiday from Australia. (they had borrowed my car whilst in the UK).
    4. Excel responded that they are not able to (willing to?) pursue the driver in Australia, as apparently an Australian address is non-servable (!), therefore I have to pay the PCN as registered keeper of the vehicle.
    5. I stated that this wasn't my responsibility, and requested an appeal.
    6. Excel responded that the appeal had been summarily dismissed, and I was responsible for the payment.

    Needless to say, I refused to do so, if they aren't prepared to make any effort to collect the payment themselves, that certainly isn't my job to do so on their behalf. I then ignored the threatening letters from all and sundry over the last nearly 3 years.

    Cue this week, I have received the N1SDT claim from from the County Court in Northampton. I have registered online, and have filed an Acknowledgement of Service stating that I intend to defend the claim.

    I guess the next step is that I need to file my defence on the MCOL. I would be grateful for your advice on the points below I intend to use, and ask if there is anything I am missing (amazingly enough, I found an almost word for word example online of someone else who was in the same situation!

    Details for the defence follow, but I would be grateful for advice on when to submit this on MCOL (any benefit/downside to doing it now?), and any comments on the detail below.

    Many thanks,
    Another Victim!

    It is admitted that Defendant is the registered keeper of the vehicle in question.
    However the Claimant has no cause of action against the Defendant on the following grounds:-
    1. The Defendant was not the driver of the vehicle on the date in question.
    2. The matter of 'keeper liability' regarding the law when parking on private land was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015 in the Annual Report where he stated:
    “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. [...] If... {POFA 2012 Schedule 4 is}... not complied with then keeper liability does not generally pass."
    3. Despite not being legally obliged to, the Defendant provided the name of the driver and the current address to the Claimant within 28 days of receiving the PCN, therefore the Claimant fails to satisfy requirements of POFA 2012 Schedule 4, Subsection 5 (1) (b) (Conditions that must be met for purposes of paragraph 4 - Right to claim unpaid parking charges from keeper of vehicle), specifically:
    5(1) The first condition is that the creditor—
    (b) is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.
    .
    4. No lawful right exists to pursue unpaid parking charges from the Defendant as keeper of the vehicle, where an operator is unwilling to transfer the liability for the charge.
    5. The name and address of the driver provided by the Defendant was a correct, genuine Australian address, as the driver at the time of the alleged contravention was in the UK on holiday, and utilizing the Defendants motor vehicle. The Claimants unwillingness to pursue a foreign driver does not constitute a valid reason to confer any claim onto the registered keeper.
    6. The Claimant stated that they could not transfer liability to the driver as the address provided was not a UK serviceable address. POFA 2012 defines a current address for service as:
    (a) in the case of the keeper, an address which is either –
    (i) an address at which documents relating to civil proceedings could properly be server on the person concerned under Civil Procedure Rules; or
    (ii) the keepers registered address (if there is one); or
    (b) in the case of the driver, an address at which the driver for the time being resides or can conveniently be contacted
    There is no requirement within the schedule for the address to be a UK address, and the Defendant contends that if parliament had wished the address of service to be limited to the area covered by POFA 2012, namely England and Wales, they would have drafted it as such. The Defendant refers the Claimant to information from the Australian Government website:
    Link removed as new poster
    A quote from the website states:
    Australia does not object to the use of private process servers, diplomatic channels or local agents. However, we have made reservations to article 10 of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (Hague Service Convention) with respect to the use of postal channels for the service of documents. We request that only registered post be used if documents are to be served by post.
    8. The Defendant further wishes to refer the Claimant to a very similar finding by the POPLA appeals process, as per below:
    The Operator rejected the Appellant’s representations because they state
    that by stopping or waiting in a restricted area, the Appellant has breached
    the terms and conditions of the parking contract.They advise that according
    to the BPA Code of Practice and Protection of Freedoms Act, the driver’s
    details must be convenient for them to contact and accordingly, they have
    requested the Appellant to provide a UK serviceable address where driver
    can be conveniently contacted and they can transfer liability to the hirer.
    The onus is on the Operator to support the enforcement of the parking
    charge notice on balance of probabilities. The Operator’s submissions refer to
    the Protection of Freedoms Act 2012 and the British Parking Association and
    advise that the address of the driver has to be a convenient serviceable
    address, nevertheless, there is no requirement in the Protection of Freedoms
    Act that the registered keeper has to provide a UK serviceable address. In the
    present case, the Appellant has provided an Australian serviceable address
    for the driver of the vehicle which appears to be a valid serviceable address
    and therefore, he has discharged his liability in relation to this
    parking charge notice. Accordingly, I allow this appeal.
Page 1
    • Fruitcake
    • By Fruitcake 17th Mar 17, 2:59 PM
    • 39,215 Posts
    • 78,345 Thanks
    Fruitcake
    • #2
    • 17th Mar 17, 2:59 PM
    • #2
    • 17th Mar 17, 2:59 PM
    Have you seen the bargepole guide to court that is linked from the NEWBIES thread? This tells you the order of doing things, and when to do it.

    You can also buy a cheap guide to court from the Parking-Prankster's blogspot for a few quid.

    Since the scammers are being unreasonable by not accepting a lawful service address (as opposed to an address where papers can be served) for the driver you should ensure you ask for costs.

    It might help to get a witness statement from the driver admitting that they were driving, and their address in Oz.
    Last edited by Fruitcake; 17-03-2017 at 3:20 PM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Coupon-mad
    • By Coupon-mad 17th Mar 17, 3:07 PM
    • 46,885 Posts
    • 60,214 Thanks
    Coupon-mad
    • #3
    • 17th Mar 17, 3:07 PM
    • #3
    • 17th Mar 17, 3:07 PM
    Excel responded that they are not able to (willing to?) pursue the driver in Australia, as apparently an Australian address is non-servable (!), therefore I have to pay the PCN as registered keeper of the vehicle.
    Wow...do they honestly have no personal line denoting scammery?

    You discharged your liability when you gave the name & address of the driver. End of story, you can't be liable.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • another victim
    • By another victim 18th Mar 17, 10:04 AM
    • 5 Posts
    • 6 Thanks
    another victim
    • #4
    • 18th Mar 17, 10:04 AM
    • #4
    • 18th Mar 17, 10:04 AM
    Many thanks for the replies Fruitcake and Coupon Mad - much appreciated.

    I have gone through the Bargepole note on process, and used one of the templates for the layout of the defence statement now. I haven't generally changed much of the text from the defence above - just changed the layout.

    I'd be really grateful if you could give opinions as to whether I am missing anything, or have included anything that I shouldn't have (e.g. should I be quoting the Henry Greenslade wording here or saving it for the Witness Statement?)

    Once again, thanks for everyone's efforts and support on this site, it is a fantastic resource, and a testament to you all!

    Cheers.
    • Coupon-mad
    • By Coupon-mad 18th Mar 17, 3:28 PM
    • 46,885 Posts
    • 60,214 Thanks
    Coupon-mad
    • #5
    • 18th Mar 17, 3:28 PM
    • #5
    • 18th Mar 17, 3:28 PM
    You can show us your draft defence here and we'd be happy to comment.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • another victim
    • By another victim 20th Mar 17, 9:27 AM
    • 5 Posts
    • 6 Thanks
    another victim
    • #6
    • 20th Mar 17, 9:27 AM
    • #6
    • 20th Mar 17, 9:27 AM
    Thanks Coupon-mad. Please find the link below - you will need to remove the spaces after the // as I am still a newbie so can't paste in a proper link.

    Many thanks!
    AV

    https:// 1drv.ms/f/s!AnTkj7OMGpvUiUTU8BJJ9T4GRyLd
    • Fruitcake
    • By Fruitcake 20th Mar 17, 10:50 AM
    • 39,215 Posts
    • 78,345 Thanks
    Fruitcake
    • #7
    • 20th Mar 17, 10:50 AM
    • #7
    • 20th Mar 17, 10:50 AM
    Thanks Coupon-mad. Please find the link below - you will need to remove the spaces after the // as I am still a newbie so can't paste in a proper link.

    Many thanks!
    AV

    https:// 1drv.ms/f/s!AnTkj7OMGpvUiUTU8BJJ9T4GRyLd
    Originally posted by another victim
    https://1drv.ms/f/s!AnTkj7OMGpvUiUTU8BJJ9T4GRyLd

    From 2, a. Further, a failure by the recipient of a notice issued under Schedule 4 to name ...

    Schedule 4 of what? You need to explain what Mr G was referring to.

    The rest looks good to me.
    If it gets to court, send a schedule of your costs before the hearing. Postage, stationery, 'phone calls, time researching and responding, loss of earnings or loss of holiday pay, packed lunch, and most important, Genuine Pre-Estimate of Parking Costs at the court, plus actual parking cost on the day.
    Last edited by Fruitcake; 20-03-2017 at 11:02 AM.
    I married my cousin. I had to...
    I don't have a sister.

    All my screwdrivers are cordless.
    "You're Safety Is My Primary Concern Dear" - Laks
    • Coupon-mad
    • By Coupon-mad 20th Mar 17, 7:14 PM
    • 46,885 Posts
    • 60,214 Thanks
    Coupon-mad
    • #8
    • 20th Mar 17, 7:14 PM
    • #8
    • 20th Mar 17, 7:14 PM
    That is a persuasive defence. Nice one.

    Make sure you are ready for Witness Statement and Evidence stage, where you have to assume that the Judge will not be familiar with th POFA schedule 4 or Henry Greenslade's words in the POPLA Annual Report 2015, so you must provide those as evidence.
    PRIVATE PCN in England/Wales? DON'T PAY BUT DO NOT IGNORE IT

    Click on the trail, top of this page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    DON'T read old advice to ignore, unless in Scotland/NI.

    • another victim
    • By another victim 21st Mar 17, 4:02 PM
    • 5 Posts
    • 6 Thanks
    another victim
    • #9
    • 21st Mar 17, 4:02 PM
    • #9
    • 21st Mar 17, 4:02 PM
    Thank you so much for all the support, I have modified the statement following Fruitcake's suggestion to include the name of the report, so all good.

    I'll print off the document tonight and post it to Northampton... fingers crossed. I'll keep you all up to date as things progress.

    Thanks so much for your help so far! You guys are awesome!
    AV
    • another victim
    • By another victim 28th Apr 17, 2:56 PM
    • 5 Posts
    • 6 Thanks
    another victim
    Hi all,

    Just an update as promised - just sent in the Directions Questionnaire (took Bargepole's advice {thanks!}), looks like BW is going to take this all the way to court, so will keep you updated on how things turn out/progress. I am sure I will be on here swatting up for last minute advice before the court date, when it is eventually announced.

    All the best,
    AV
    • Lamilad
    • By Lamilad 28th Apr 17, 3:11 PM
    • 681 Posts
    • 1,461 Thanks
    Lamilad
    Hi all,

    Just an update as promised - just sent in the Directions Questionnaire (took Bargepole's advice {thanks!}), looks like BW is going to take this all the way to court, so will keep you updated on how things turn out/progress. I am sure I will be on here swatting up for last minute advice before the court date, when it is eventually announced.

    All the best,
    AV
    Originally posted by another victim
    After reading your defence I'll be very surprised if this one makes it to court BWL are discontinuing cases for lesser reasons than they would in this case. No prosepct of success IMHO
    • Gill1e
    • By Gill1e 29th Apr 17, 8:53 PM
    • 2 Posts
    • 2 Thanks
    Gill1e
    Good luck!
    Google Mum and daughter parking ticket appeal - mirror article - have a read, you might be able to add a similar ground to your appeal?

    Anyway, I'm also having exactly the same problem and no doubt my case will end in court. They refuse to accept an address in South Africa for the driver. I studied law at Uni and I know the Judge, even though they may not be familiar with this piece of legislation (PFA), will take the literal interpretation of "serviceable address" and construe that to mean an address capable of receiving post. There is no term in the legislation about the address having to be in the UK.

    Are you able to appeal to POPLA or is it too late? I only ask because the Judge may ask why you didn't, as you have a duty under pre action protocol to resolve the issue as best you can before going to Court. Be prepared if the judge asks you, but I would just reiterate that you fully complied with PFA and as far as you were concerned the case was closed. There is a counter argument for fraud - Their argument that the address must be in the U.K. is wholly unfounded and amounts to false misrepresentation - as this misrepresentation is clearly aimed at creating a loss for you and a gain for them then this is fraud under the Fraud Act 2006. Have a read of section 2. I find it hard a parking company operating at this point in time is not aware of POPLA's stance on overseas addresses as regards PFA. Anyway, really hope you win - please let us know what happens.
    • Johnersh
    • By Johnersh 29th Apr 17, 11:47 PM
    • 110 Posts
    • 139 Thanks
    Johnersh
    Australia is very easily serve-able. The fact that it may not be economical for Excel to apply to serve proceedings out of the jurisdiction ain't your problem. Agree that this claim is most unlikely to pass muster if proceeds to a hearing.
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