Fine on hospital property, given to staff

Scigal_2

HI all,

I have used what I think is right for the defence, it does state the staff member was the driver. should this be removed?

Thanks

I am not liable as POFA 2012 has not been invoked here and I was categorically, not the driver. 'Keeper liability' can only be established if the requirements of Schedule 4 of the POFA 2012 are met. That would have involved sending a fully compliant Notice to Keeper between day 29 and day 56 after the windscreen ticket. A speculative invoice was sent on day 16, and therefore there is no keeper liability, as POFA 2012 requirements were not met. They have failed to meet the criteria laid down in Schedule 4 of the POFA 2012 and hence they cannot bring a claim against the Registered Keeper, only the driver. The notice to keeper was sent well ahead of the minimum of 28 days. The parking event occurred 16th October 2013. First letter asking for money received 1/11/13, 12 days after the event, 2nd letter wanting twice amount received 28/11/13.This case has been levelled at the registered keeper and the registered keeper is not the driver. There is no keeper liability.
The NHS Trust has used 'reasonable cause' to get the DVLA data because they are not a private parking company and the Hospital could show reasonable cause (and their solicitors are acting for them in that regard). But they could ONLY get that data for the purpose of trying to level this charge at the driver. A complaint was made to the DVLA in writing about this data confidentiality issue. Only Approved Operator Scheme of an Accredited Trade Association such as the BPA (or the IPC) members can get DVLA data. I believe in this instance the principles of the Data Protection Act have been breached. In this case also, the defendant has been denied the right to formally challenge this parking charge by the avenues normally open to AOS members. This is normally done via an independent appeals system which is POPLA for BPA members or the IAS for IPC members.
This charge is also an invoice, it is not a genuine pre estimate of loss that could be caused by any alleged breach, in fact a parking permit is paid for monthly on that car and therefore there is no financial loss to the landowner. A ‘Lost ticket’ charge is £7.

The amount claimed for this parking charge is disproportionate and punitive and does not reflect any genuine pre-estimate of loss incurred to the landowner in question. This vehicle was covered by a permit which is paid for by the driver on a monthly basis deducted from the salary; therefore the driver is a staff member and fully entitled to park. The allegation was that there was no valid permit displayed; therefore I request that this claim by struck out as there is no basis to continue. There was no financial loss incurred to the claimant as this is a fully paid-up permit. The OFT have also stated that parking charges are not automatically recoverable just because they are stated to be a parking charge. It cannot be used to create a loss where no loss exists. This charge is therefore by default an unenforceable penalty.



The Trusts solicitors failed to follow the Practice Direction, as no Letter before claim was sent, this would have enabled the keeper to have sent a formal response and request a POFA code. This should have given concise details about the matter, it should enable the defendant to understand and investigate the issues. It should include if a financial loss is claimed, an explanation of how the amount has been calculated for example. The defendant should be referred to Practice Direction and in particular draw attention to paragraph 4 concerning the court’s powers to impose sanctions for failure to comply with the Practice Direction.
link rempoved to finance paper discussion.
There are 3,760 parking spaces, which means that each space costs £156. Staff parking accounts for 70% of all spaces. £ 150 per space, per year. The permit charge is approximately £120 per year. Which equates to approximately 0.53p daily charge.

Coupon-mad

I would remove any suggestion of who the driver was as it is not for you to assist the claimant with their case. But is there a way you would be able to prove you were elsewhere (if so have that ready for any hearing).


I would start the defence with an immediate request for a strike out:


Re: CLAIM NUMBER *********
I am the Defendant and all liability for this claim is denied. I ask the court to strike the case out as having no cause of action because:

1. I was not the driver and I can prove this as fact.

2. It would have been up to this Claimant either to have established at the time of alleged 'contract' who they were contracting with, or to have followed the strict requirements of the Protection of Freedoms Act 2012, Schedule 4, if they had wanted to establish any possibility of keeper liability in law. This Claimant has failed to do either so the case should be struck out.




...then continue your points but number the paragraphs as I have done, to make it easier to refer to later at a hearing (and easier for a judge to follow, point by point).

AnnieO1234

I'm slightly confused by this thread and concerned. Mainly because no-one seems to have really factored in the 3 different V888 forms to apply for RK details with reasonable cause. (One for individual, one for company, one for parking companies.) people seem to be confused with the Elisa database which is a direct information upload.

OP get over to peppipoo ASAP.

Coupon-mad

AnnieO1234 wrote: »

I'm slightly confused by this thread and concerned. Mainly because no-one seems to have really factored in the 3 different V888 forms to apply for RK details with reasonable cause. (One for individual, one for company, one for parking companies.) people seem to be confused with the Elisa database which is a direct information upload.

OP get over to peppipoo ASAP.

Stop trying to troll and confuse threads. The OP in this case must concentrate on their defence and doesn't need you trying to lead them off an a stupid tangent. You are a liability on MSE forums.

4consumerrights

Coupon this OP may indeed need to look at defence again - have sent you email.

And a lot will depend on signage here - do we have a sign for this site?

Coupon-mad

I will check emails tomorrow or over the weekend as it's a bit hectic in my house at half term!

4consumerrights

Bumping up this thread - as this op needs to submit defence asap

a photograph of car park signage would not go amiss to determine basis of charge.

Scigal_2

Hi, there is a red sign that states no parking, however it is way above driver head height, more so its not obvious at all. It cannot be seen entering the area. Nor when one leaves the car and turns to walk to the entrance. Its on a 45degree angled wall. Purposely id say.

Scigal_2

This is what I have out together, Im hoping to submit it by email today

Re: CLAIM NUMBER ...

I am the Defendant and all liability for this claim is denied. I ask the court to strike the case out as having no cause of action because:

1. I was not the driver and I can prove this as fact.

2. It would have been up to this Claimant either to have established at the time of alleged 'contract' who they were contracting with, or to have followed the strict requirements of the Protection of Freedoms Act 2012, Schedule 4, if they had wanted to establish any possibility of keeper liability in law. This Claimant has failed to do either so the case should be struck out.
3.I am not liable as POFA 2012 has not been invoked here and I was categorically, not the driver. 'Keeper liability' can only be established if the requirements of Schedule 4 of the POFA 2012 are met. That would have involved sending a fully compliant Notice to Keeper between day 29 and day 56 after the windscreen ticket. A speculative invoice was sent on day 16, and therefore there is no keeper liability, as POFA 2012 requirements were not met. They have failed to meet the criteria laid down in Schedule 4 of the POFA 2012 and hence they cannot bring a claim against the Registered Keeper, only the driver. The notice to keeper was sent well ahead of the minimum of 28 days.
4.The parking event occurred 16th October 2013. First letter asking for money received 1/11/13, 12 days after the event, 2nd letter wanting twice amount received 28/11/13.This case has been levelled at the registered keeper and the registered keeper is not the driver. There is no keeper liability.
5. The NHS Trust has used 'reasonable cause' to get the DVLA data because they are not a private parking company and the Hospital could show reasonable cause (and their solicitors are acting for them in that regard). But they could ONLY get that data for the purpose of trying to level this charge at the driver. A complaint was made to the DVLA in writing about this data confidentiality issue. Only Approved Operator Scheme of an Accredited Trade Association such as the BPA (or the IPC) members can get DVLA data. I believe in this instance the principles of the Data Protection Act have been breached. In this case also, the defendant has been denied the right to formally challenge this parking charge by the avenues normally open to AOS members. This is normally done via an independent appeals system which is POPLA for BPA members or the IAS for IPC members.
6.This charge is also an invoice, it is not a genuine pre estimate of loss that could be caused by any alleged breach, in fact a parking permit is paid for monthly on that car and therefore there is no financial loss to the landowner. A ‘Lost ticket’ charge is £7.

7.The amount claimed for this parking charge is disproportionate and punitive and does not reflect any genuine pre-estimate of loss incurred to the landowner in question. This vehicle was covered by a permit which is paid for on a monthly basis deducted from the salary; therefore the car is fully entitled to parked. The allegation was that there was no valid permit displayed; therefore I request that this claim by struck out as there is no basis to continue. There was no financial loss incurred to the claimant as this is a fully paid-up permit. The OFT have also stated that parking charges are not automatically recoverable just because they are stated to be a parking charge. It cannot be used to create a loss where no loss exists. This charge is therefore by default an unenforceable penalty.



8.The Trusts solicitors failed to follow the Practice Direction, as no Letter before claim was sent, this would have enabled the keeper to have sent a formal response and request a POPLA code. This should have given concise details about the matter, it should enable the defendant to understand and investigate the issues. It should include if a financial loss is claimed, an explanation of how the amount has been calculated for example. The defendant should be referred to Practice Direction and in particular draw attention to paragraph 4 concerning the court’s powers to impose sanctions for failure to comply with the Practice Direction.


rempoved to finance paper discussion.
9.There are 3,760 parking spaces, which means that each space costs £156. Staff parking accounts for 70% of all spaces. £ 150 per space, per year. The permit charge is approximately £120 per year. Which equates to approximately 0.53p daily charge. This emphasises how disproportionate the charge is.

10. Signage. The signage does not comply with BPA rules. It is not prominent; it does not contain any Terms and Conditions or rules regarding parking, or alledged contracts. A red sign with the words ‘no parking’ is placed on a wall that cannot be seen by a driver entering the area, or upon leaving the car and walking towards to the door, nor upon driving out of the area, it is too far above driver head height and not placed on an obvious wall. The sign is on a 45 degree angled wall and is not naturally viewable by any driver. Where the car was parked on the day, now stands a large refrigerator for cadavers (much larger than any car), does this not also breach any contract of nothing to be in the mortuary area? There are also several contract vehicles parked daily with no apparent window sticker invoices.

11. The CEO of the hospital and PALS have been contacted and complained to about this issue.

Coupon-mad

First letter asking for money received 1/11/13, 12 days after the event,

should be :

First letter asking for money received 1/11/13, 16 days after the event, being sent within the wrong timeframe and not worded correctly to serve as a POFA2012 compliant 'Notice to Keeper'.

and what's this above point 9:

''rempoved to finance paper discussion.''

and a typo here in point #10:

'alledged' should be alleged

and I would remove this as irrelevant: 'The signage does not comply with BPA rules.' Instead go for 'The signage is not prominent...'

and remove this (below) as irrelevant:

' Where the car was parked on the day, now stands a large refrigerator for cadavers (much larger than any car), does this not also breach any contract of nothing to be in the mortuary area? There are also several contract vehicles parked daily with no apparent window sticker invoices. '

And remove as irrelevant to a defence:

''11. The CEO of the hospital and PALS have been contacted and complained to about this issue. ''

By way of comparison:

Here is a redacted and adapted example of a defence someone sent a court last year, about a different car park. This is worded more strongly IMHO and you could copy from it:

1. It is admitted that Defendant is the owner of car registration xxxxxxxx.
2. It is denied that the Defendant was the driver who parked in xxxxxxx car park at the time mentioned in the Particulars. The Claimant is put to proof of the same.
3. It would have been up to this Claimant either to have established at the time of alleged 'contract' who they were contracting with, or to have followed the strict requirements of the Protection of Freedoms Act 2012, Schedule 4, if they had sought to establish any possibility of keeper liability in law. This Claimant has failed to do either and it is a fact that this Defendant was not the driver, so the case should be struck out.
4. It is denied that the signage formed any contract with any drivers at this car park. The only nearby sign is not prominent; it does not contain any Terms and Conditions regarding parking that could have been breached, nor does it offer any consideration that could have been accepted nor warn of a parking charge. A red sign with the words ‘no parking’ is placed on a wall that cannot be seen by a driver entering the area, or upon leaving the car and walking towards to the door, nor upon driving out of the area. This single sign is too far above driver head height to be seen and is placed on an angled wall out of sight. As per Thornton v Shoe Lane Parking [1971] 2 QB 163, the relevant terms must be made known before a contract was formed.
5. Alternatively, if the sign to be relied upon is the one stating 'no parking' then the matter is not one of alleged 'breach of terms' but instead can only have been a matter falling under the tort of trespass (which is denied as the Defendant was not the driver). No damages arising from trespass have been claimed nor demonstrated and cannot be claimed from a registered keeper outwith the strict procedures within Schedule 4 of POFA2012.
6. The claimant has failed to present a full breakdown of any pre-estimate of loss. It is denied that any loss flowed from the alleged parking event and it is denied that this Defendant is so liable.
7. Further and alternatively, the sum claimed is unenforceable as an unfair term contrary to Regulation 5 of The Unfair Terms in Consumer Contracts Regulations 1999. This is a term which falls within Schedule 1, paragraph (e) of the Regulations being a term "requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation". The term was not individually negotiated and causes a significant imbalance in the parties' respective rights and obligations.
8. The sum claimed is a penalty designed to deter and as such is not recoverable under any alleged contract.
9. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.