URGENT - Court Action started - PLEASE HELP!

Coupon-mad

Completely relevant defences, you need to stop overthinking this. Just make a version that says the defendant was not the driver, easy, look:

https://forums.moneysavingexpert.com/discussion/comment/70909695#Comment_70909695

This is much easier than you are telling yourself it is, simply a matter of adding: 'The Defendant was not the driver of the vehicle on the date in question.' then all the usual defence points as you will have noticed again and again, including in this linked one.

Locus standi just means 'standing' (i.e. you contend that the PPC doesn't own the land - they almost never do - so your OH can allege they have no standing to bring a claim because that would be up to the landowner). You do not have to KNOW what the signs look like nor whether the PPC owns the land, just use the defence points that you see time and again and show us your draft.

JodeeMcD

Thank you for all of that Coupon-Mad! I have spent ages cutting and pasting and trying to make sense of it all and trying to make sure that I understand what it all means. This is what I've got - please let me know what you think :-0

STATEMENT OF DEFENCE


1.
The Defendant denies any liability whatsoever to the Claimant.


2.
The Claimant has not complied with the pre-court protocol. The Particulars of Claim contains no details and fails to establish a cause of action which would enable the Defendant to prepare a specific defence. It just states “parking charges” which does not give any indication of on what basis the claim is brought. There is no information regarding why the charge arose, what the original charge was, what the alleged contract was nor anything which could be considered a fair exchange of information. The defendant therefore asks that the court orders the case to be struck out for want of a detailed course of action.


3.
It is admitted that Defendant is the registered keeper of the vehicle in question. However the Defendant was not the driver of the vehicle on the dates in question.
If the Claimant is intending to pursue this claim against the Defendant on the basis that the Defendant is the registered keeper then the Claimant has failed to show that the conditions for recovering this charge under Schedule 4 of the Protection of Freedoms Act 2012 have been met. The Defendant disputes that any of the conditions necessary for a claim to be pursued against the keeper of the vehicle have been met.

3.a)
No evidence has been provided to show a valid Notice to Driver was given to the driver in accordance with Paragraph 7, Schedule 4 of the Protection of Freedoms Act 2012.

3.b)
Where a Notice to Driver was given no evidence has been provided to show that a valid Notice to Keeper was served in accordance with Paragraph 8, Schedule 4 of the Protection of Freedoms Act 2012.

3.c)
Where no Notice to Driver was given no evidence has been provided to show that a valid Notice to Keeper was served in accordance with Paragraph 9, Schedule 4 of the Protection of Freedoms Act 2012.

3.d)
No evidence has been provided to show that the Creditor has made a valid application for keepers details in accordance with Paragraph 11, Schedule 4 of the Protection of Freedoms Act 2012.

QUESTION – According to POFA 2012 ‘no more can be recovered from the registered keeper than is specified on the Notice to Keeper’. This is £70 per PCN and yet they are claiming £120 per PCN – should I make a point about this?? Or would that be admitting that I have to NOK in my possession? Also, I think it says that the NOK must give details of discount for payment within 14 days. There is no mention of discount on the NOK, only on the PCN. Is this worth raising?


4.
It is believed that the Claimant has no standing to bring this claim. The proper Claimant is the landowner. They have failed to establish their legal right to bring a claim either as the landholder or the agent of the landholder. Strict proof is required that there is a chain of contracts leading from the landowner to Horizon Parking Limited. The Defendant claims 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.


5.
The Claimant has failed to establish driver liability for the parking charges and therefore there is no cause of action.

5a)
At the time these parking charges arose the vehicle had been issued with a permit to park at the University of Surrey car parks. If this is the location the Claimant is asserting the parking charges relate to then the charges are refuted as the permit allowed unrestricted parking in that location.

5b)
The permits were displayed in the window of the vehicle identified in this claim on the dates in question.


6.
The signage at the location is poor. The Claimant did not display clear signs within the site that were capable of being read and/or form a contract. The signage did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the BPA, whose requirements they also did not follow. Therefore no contract has been formed with driver.


7.
Even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in Consumer Contract Regulations 1999.

7.a)
The Claimant might argue that the Supreme Court’s decision is Parking Eye v. Beavis is applicable. The Defendant will argue that the present case meets none of the conditions that the Supreme Court stated were required for a parking notice to be exempt from the well-established principle that penalty charges cannot be recovered. The main difference is that the Supreme Court determined that, in a retail park, there was a public interest in ensuring a turnover of visitors that justified a disincentive to overstay. There is clearly no such interest in a third party attempting to impose conditions in an educational establishment where there is no turnover of visitors and no pay-and-display car parking – parking is for a limited number of students and staff who must apply to the University and meet strict criteria in order to be approved and accepted onto the parking permit scheme. The vehicle in question was on this scheme and was displaying a valid permit on each of the dates given. It is denied that any contract existed here and in any case, Mr Beavis was the driver and this is not the case here.


8.
The Defendant also disputes that the Claimant has incurred £50 solicitor cost. The Particulars of Claim are incompetent in disclosing no cause of action.


9.
The Defendant invites the court to strike out the claim as having no prospect of success.


I believe the facts stated in this defence are true.

Coupon-mad

QUESTION – According to POFA 2012 ‘no more can be recovered from the registered keeper than is specified on the Notice to Keeper’. This is £70 per PCN and yet they are claiming £120 per PCN – should I make a point about this?? Or would that be admitting that I have to NOK in my possession? Also, I think it says that the NOK must give details of discount for payment within 14 days. There is no mention of discount on the NOK, only on the PCN. Is this worth raising?

Yes, put both points in. You are getting the hang of this! A keeper can indeed only be liable under the POFA, for the sum on the NTK (plus court fees) not added costs, which were probably never on the signs and never incurred genuinely at all.


Here, below, you could add a bit about the POFA again because Schedule 4 also requires 'adequate notice' of the parking charge itself:

6.
The signage at the location is poor. The Claimant did not display clear signs within the site that were capable of being read and/or form a contract. The signage did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the BPA, whose requirements they also did not follow. Therefore no contract has been formed with driver and the notices do not provide the 'adequate notice' of the parking charge which is mandatory under Schedule 4 of the POFA.

JodeeMcD

Oh that's brilliant thank you soooo much! I wasn't even sure that it all made sense so thanks for your reassurance. I feel a bit calmer now :-)

I will put those extra bits in but will they not question why I am asking them to prove the PCNs and NOKs were served and then in the next paragraph I say that the NOK only mentions £70 and doesn't give a discount. Doesn't that make it sound like I am lying?

Coupon-mad

No, you are not saying the NTK doesn't exist. You are merely putting the claimant to strict proof of when the NTK was deemed served and that it was compliant (in wording). That means they will have to try to prove that in their evidence and will be something you can these bring up and question their rep about, in detail, at any hearing.

If you don't query the compliance of the NTK at this stage, you can't use it at a hearing. So, it's just a means to an end because the case could be won (and should be won) by a defendant who wasn't driving, because we've seen Horizon documents and I don't recall them ticking all the boxes in para 8 of Schedule 4.

You want that scrutinised in court, so you must introduce the issue in this first defence.

JodeeMcD

SO WE'RE GOING TO COURT !!!!!!

Please help - I need to serve WITNESS STATEMENTS within the net 48 hours - I originally thought I didn't need to serve any as I didn't think we had any witnesses and had already served our quite thorough Defence Case Statement, but on reading the documents again I have just realised that both my husband and I are both witnesses (or at the very last me, as he is the defendant).

Can anyone give me any guidance or point me towards any examples? Any help would be very much appreciated. It's all very confusing and a bit scary! Thanks so much :-)

elsien

Bumping this for OP.

Coupon-mad

JodeeMcD wrote: »

SO WE'RE GOING TO COURT !!!!!!

Please help - I need to serve WITNESS STATEMENTS within the net 48 hours - I originally thought I didn't need to serve any as I didn't think we had any witnesses and had already served our quite thorough Defence Case Statement, but on reading the documents again I have just realised that both my husband and I are both witnesses (or at the very last me, as he is the defendant).

Can anyone give me any guidance or point me towards any examples? Any help would be very much appreciated. It's all very confusing and a bit scary! Thanks so much :-)

It's all in the NEWBIES thread, under 'Small Claim?' where it tells you about witness statements/skeleton argument stage, ready for the hearing and the evidence exhibits you must also include.

So start by reading that part of the NEWBIES thread now, tells you what to do when and has been updated since you started your thread. It includes at least one link to a Witness Statement example. It also give you things like a link to here (see post #9) -this is IamEmanresu from here (posting as 'emanresu' on pepipoo) explaining witness statements and skeleton arguments:

http://forums.pepipoo.com/index.php?showtopic=106957&st=0&p=1239147&#entry1239147

At the very least as evidence, your OH needs any signage photos he is relying upon, any other evidence and a copy of Schedule 4 to show the Judge (likely to be unfamiliar with it) and a copy of Henry Greenslade's words from the POPLA Annual Report 2015, about 'UNDERSTANDING KEEPER LIABILITY'.

Here you can see an example of how those pieces of evidence helped Lamilad to win:

http://parking-prankster.blogspot.co.uk/2016/11/mr-pickups-fun-day-out.html

HTH

JodeeMcD

Thank you! I'm on it now!

JodeeMcD

I've been at it all night, how do these Witness Statements sound? Any thoughts would be much appreciated thank you


WITNESS STATEMENT #1

I, MR XXXXXXXXXX , of XXXXXXXXXX, am the Defendant in this matter, and will say as follows:

1.
The facts in this statement come from my personal knowledge. Where they are not within my knowledge they are true to the best of my information and belief.

2.
I am not liable to the Claimant for the sum claimed, and this is my Witness Statement in support of my Statement of Defence as already filed.

3.
The facts of the case are as set out in my Statement of Defence, and I rely on that document as a true account.

4.
I assert that I am the registered keeper of the vehicle in question, registration XXXXXXX. I also assert that I was the registered keeper of that vehicle on the relevant dates of 01/06/2015, 02/07/2015 and 23/09/2015. However, I was not the driver of the vehicle on those dates.

5.
On the relevant dates I was living away from home whilst studying for a Post Graduate Diploma at XXXXXXXXXX in London. During this period the vehicle remained at my home address in West Sussex.

6.
During this period, my wife, XXXXXXXXXX, was authorised and insured to drive the vehicle.

7.
On the relevant dates, my wife, was studying for a Masters Degree at XXXXXXXXXX , which is located on the grounds of the University of Surrey campus in Guildford. It is my understanding that she regularly used the car for her daily commute to and from Guildford.

8.
It is my understanding that my wife, was in receipt of a valid permit to park on the University of Surrey campus. She has provided me with copies of her permits for the dates in question and these are included as Exhibits 1-3.

9.
I was not aware that the vehicle had received any PCN’s until June 2016 when my wife informed me that she had received three parking tickets a year previously which she had been advised to ignore as they were issued on private land and were therefore not enforceable.

10.
At no time have I received any paperwork relating to this matter, prior to legal action being taken. I did not receive any Notice to Driver documents, Notice to Keeper documents or a Letter Before Claim until after this matter was already listed for a Court hearing.

11.
I confirm that my wife has permission to open mail which is addressed to me whilst I am working away from home. This is necessary in order for her to pay bills and do household admin in my absence. I would expect her to tell me if she received any mail of significance in my name. I have never known her to keep something from me and was surprised and annoyed that she didn’t tell me about this sooner.

12.
I wish to draw your intention to POPLA (Parking on Private Land Appeals) Lead Adjudicator’s Henry Greenslade’s words in the 2015 POPLA Annual report.

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 Traf c 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.

I have included a copy of this report as Exhibit 4.

13.
I wish to draw your intention to Schedule 4 of the Protection of Freedoms Act 2012. I believe that the Claimant has failed to show that the conditions for recovering this charge under Schedule 4 of the Protection of Freedoms Act 2012 have been met. I dispute that any of the conditions necessary for a claim to be pursued against the keeper of the vehicle have been met.

I have included a copy of this legislation as Exhibit 5.

14.
It is my understanding that signage at the location is poor. The Claimant did not display clear signs within the site that were capable of being read and/or form a contract.

I have included photographs of the signage as Exhibits 6-9.

7.
I wish to draw your attention to the Unfair Terms in Consumer Credit Regulations 1999. It is my understanding that even if a contract had been formed it would be void. The Claimant was not acting in good faith and was in breach of the Unfair Terms in Consumer Contract Regulations 1999.

I have included this as Exhibit 10

I believe the facts stated in this statement are true.



WITNESS STATEMENT #2

I, XXXXXXXXXX, of XXXXXXXXXX, am a Witness in this matter, and will say as follows:

1.
The facts in this statement come from my personal knowledge. Where they are not within my knowledge they are true to the best of my information and belief.

2.
I assert that the Defendant, XXXXXXXXXX is the registered keeper of the vehicle registration XXXXXXX. He is my husband and I am authorised and insured to drive the vehicle. I was authorised and insured to drive the vehicle on the dates in question.

3.
I confirm that I was the driver of the vehicle registration XXXXXXX on the dates 01/06/2015, 02/07/2015 and 23/09/2015.

4.
During this period I was studying for a Masters Degree at XXXXXXXXXX, which is located on the grounds of the University of Surrey campus in Guildford. I graduated from this course in April 2016.

5.
Whilst I was a student I applied to join the University of Surrey SOUPS permit scheme. SOUPS is the Student Online University Parking System and acceptance on the scheme is restricted to a small number of students due to limited parking facilities on campus. In order to be eligible for the SOUPS permit scheme you have to meet strict criteria, such as living outside the University’s parking exclusion zone, having a medical condition that necessitates the use of a car, or following a course that requires regular attendance outside normal public transport operating hours (7am to 7pm).

6.
I was accepted onto the SOUPS Permit Scheme because I commuted daily from my home address in West Sussex and my course hours were 8.30am to 9.30pm Monday to Friday for the duration of the course.

7.
In addition to this, I underwent reconstructive hip surgery in spring 2015 which meant that I was unable to walk very far and I was for a time given an additional medical permit which allowed me to park immediately next to the building, however this expired prior to the date of the first PCN.

8.
Students who are accepted onto the SOUPS scheme have to pre-pay online in advance for each parking permit as only a limited number are available each day. It is my understanding that the reason for this is to prevent more daily permits being issued than there are available parking spaces.

9.
Due to my long course hours, and no alternative travel or parking options nearby, I always booked my parking permits when they went on sale 14 days in advance of the parking date. I did this to ensure that I had a valid permit to park on campus at all times.

10.
On the dates in question, I confirm that parked the vehicle within the University of Surrey car park.

11.
On the dates in question, I confirm that I was in receipt of valid parking permits. I also confirm that these were clearly displayed in the vehicle’s windscreen on each occasion.

12.
During summer 2015 there was frequent building work being carried out on campus and which meant that a number of parking bays were cordoned off and out of use. This resulted in the parking situation becoming even more problematic than usual and there were regularly a number of cars in the car park with pre-paid permits but no marked bay in which to park. It became standard practice for these surplus cars to park around the outside of the car park, on the end of marked bays, on cross hatching and in motorcycle bays. To this day I have never seen a single motorcycle parked in the University of Surrey car park.

13.
I reiterate that there are no other alternative parking options once you have pre-booked and paid for a daily permit as the campus is located out of the town centre alongside the A3 dual carriageway.

14.
XXXXXXXXXX is a prestigious school and places are highly sought after. The school has a strict attendance policy and lateness is not tolerated. If you arrive late then you are refused entry to class. Fees for the course are in excess of £16,000 per year so if you are unable to park then it has substantial consequences. The topic was raised within the school and the general consensus from tutors was to park wherever you could, providing that you were not obstructing any other vehicle. I confirm that at no time did I obstruct any other vehicle in the car park.

15.
On 01/06/2015 I discovered a PNC attached to the vehicle’s windscreen. I was very upset and immediately raised this issue with the head of my course who told me not to worry, because the PCN was issued on private land it was not legally enforceable. He advised me to rip up the parking ticket and ignore any letters that came in the post. He informed me that he had done the same and said that the parking company would stop chasing when they realised that they would not get any response. I have since discovered that this information was not necessarily correct but as head of my course I had no reason to doubt him and I took him at his word. He has declined to give a statement in this matter.

16.
After speaking with my course leader, I searched for further advice online and found that PCN’s on private property are not generally enforceable for the general reasons given in the Statement of Defence. Only the landowner can issue a claim for trespass, and if the claim is for breach of contract, the claim has to represent the loss and cannot be a financial penalty. As I had already pre-paid for my parking permits in advance, I caused no loss to the Claimant. The advice prevalent was therefore to ignore the charge as it was unenforceable.

17.
I received two further PCN’s on 02/07/2015 and 23/09/2015.

18.
The Defendant, who is my husband, was living and working away from home during this period. I did not inform him that I had received any PCN’s as it was my belief that they were not enforceable.

19.
Because my husband, was spending so much time away from home, it was standard practice for me to open any mail received at the property, regardless if it was addressed to him or myself. I had implied consent to do this and my husband was aware of the situation as it was necessary for me to keep on top of household bills and general admin whilst he was away.

20.
Over the next few months I received several letters chasing payment for the PCN’s which were all addressed to my husband as he is the registered keeper of the vehicle. However, I did not pass any of these letters onto him as I was of the belief that they were not legally enforceable and I was following my tutor’s advice to ignore all correspondence. I did not feel it necessary to worry him as it was my understanding that I hadn’t done anything wrong.

21.
These letters were from a number of different debt recovery companies and it appeared that one company was just passing the information onto another. After a while the letters ceased and I presumed that my tutor had been right and that they had eventually given up chasing me because the PCN’s were not legally enforceable.

22.
After several months of not hearing anything, I recall receiving what I now know to be the Letter Before Claim which was addressed to my husband. Again, I did not pass this on or make him aware of this, as I didn’t realise the significance of the document at the time and presumed that it was just another rogue debt recovery company trying their luck.

23.
In June 2016, a year after the first PCN was issued, I recall opening the County Court Claim Form which was again addressed to my husband. This document was significantly different from the various chaser letters I had opened and it was at this point that I finally disclosed to my husband about the PCN’s I had received a year earlier and the requests for payment that, following advice, I had been ignoring ever since.

24.
With the Court’s permission, I would like to act as a Litigation Friend for the Defendant in this hearing as he has limited knowledge of the circumstances surrounding the events in question as he was not aware of them until a year after the event.

I believe the facts stated in this statement are true.