Request for popla refused despite quoting legislation, what to do now?

Gin_and_Milk

Yes it was a P&D car park and you're right about the allegation (even though that isn't mentioned in the particulars)

"the driver tried to buy a ticket at the time but was unable to do so because of their machines". The reason was because their machines only accepted denominations of 20p minimum. The cost for the required stay was £1.50, therefore it was not possible to purchase a ticket from one of their machines unless the driver had a 50 pence piece. The claimant failed to provide adequate means for the defendant to pay.

My wording isn't great I know as I'm not familiar with the jargon!

I'll add the point about MB not following PoFA into my draft too.

With regards to the other quote, I got it from Pepipoo. I can't remember the name of the OP but they won. It musn't be as recent as I thought so I've deleted it from my draft.

Thanks again

Coupon-mad

OK let's see your next draft and certainly nothing about 'no loss' or 'GPEOL' in it.

Gin_and_Milk

I'm trying to read through paras 8 and 9 of schedule 4 PoFA, but it may as well be written in Dutch. I genuinely don't know which bits to refer to and I'm struggling to find anything on the forum too.

I included this bit in my draft: "No evidence has been supplied by this Claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. I choose to defend this claim as the registered keeper, as is my right."

I'm guessing that's not specific enough?

I've copied this bit from bigsej, but I'm guessing that's not what you're referring to either?

"Under the Protection of Freedoms Act 2012, Schedule 4 (POFA), a registered keeper can only be held liable for the sum in any compliant 'Notice to Keeper' (a sum which is less than both claims). This depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts."

I really do appreciate your help Coupon - Mad, but could you please give me an idea of where to look? I know it sounds daft but I just don't understand the legislation and all the jargon.

Coupon-mad

Actually, those two paragraphs you have quoted will do the job for your husband for now, to cover the 'keeper liability' issue! So let's see that draft again please as we are on a new page now, at least it is for me with the way I have my settings 'posts per page'. I am on page 3 and would prefer to see the draft again here, it really helps as we do hop by and skim-read threads a lot, we regulars rarely look back very far on any thread...

Gin_and_Milk

Here it is. Our settings are different. I'm on page 4.

"

1. It is admitted that the defendant, Mr XXXXXX XXXXX, residing at xxxxxxxxxxxxxxxxxxxxxxx is the registered keeper of the vehicle not the driver.


2. The claimant has failed to file enough information in the Particulars of Claim to establish a cause of action that enables the Defendant to prepare a specific defence, i.e for Trespass, a Contractual ‘unpaid fees’ or a Breach of Contract. The Defendant is therefore forced to cover all three possible grounds for the claim. This has caused significant distress and denies the Defendant fair chance to defend the claim in an informed way. The claim merely states: ‘parking charges and indemnity costs if applicable’ which does not give any indication of on what basis the claim is brought. Nor are any clear times / dates or coherent grounds for any lawful claim particularised, nor were any details provided to evidence any contract created nor any copy of this contract, nor explanation for the vague description ‘parking charges’ and ‘indemnity costs’. The Defendant asserts that, in any case, the claim is without foundation. The claimant also disputes that the Claimant has incurred a £50 solicitor cost.


3. There is no signage whatsoever from the Claimant on the driveway to the carpark. There is a dark coloured sign after the car park entrance, but the terms and conditions are unclear as it is placed at an awkward angle making it difficult to read. The sign is easily obscured by larger vehicles making it impossible to see.


4. The driver tried to purchase a ticket for the duration of the stay but was unable to do so due to Claimant failing to provide adequate facilities. The lowest denomination the Claimant’s machines accept is a 20 pence piece, however the cost was £1.50. The driver did not have a 50 pence piece and the machine gave no change.


5. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs, or even their unlawful 4% fixed sum surcharge for payments - and they are put to strict proof that they have actually incurred and can lawfully add an extra sum and that those sums formed part of the parking contract formed in the first instance.


6. The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details nor even checking for a true cause of action. HMCS have identified over 1000 similar poorly produced claims and the solicitor’s conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.


7. I believe the terms for such conduct is ‘robo claims’ which is against the public interest, demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers. I have reason to believe that this is a claim that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.


8. I respectfully suggest that parking companies using the small claims track as a form of aggressive, automated debt collection is not something the courts should be seen to support.


9. No evidence has been supplied by this Claimant as to who parked the vehicle. Under the Protection of Freedoms Act 2012 there is no presumption in law as to who parked a vehicle on private land nor does there exist any obligation for a keeper to name a driver. I choose to defend this claim as the registered keeper, as is my right.


10. Under the Protection of Freedoms Act 2012, Schedule 4 (POFA), a registered keeper can only be held liable for the sum in any compliant 'Notice to Keeper' (a sum which is less than both claims). This depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts.


11. It is denied that the Claimant has the authority to bring this claim. The proper Claimant (if any debt exists, which is denied) would be the landowner.


12. The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and vexatious. As such, I am keeping a note of my wasted time / costs in dealing with this matter.


13. I request the court strike out the claim XXXX for similar reasons cited by District Judge Cross of St Albans County Court on 20/09/16 where a similar claim was struck out without a hearing, due to Gladstones’ template particulars for a private parking firm being ‘incoherent’, failing to comply with CPR16.4, and ‘providing no facts that could give rise to any apparent claim in law’.


Statement of Truth: I confirm that the contents of this statement are true to the best of my knowledge and belief."

Coupon-mad

1. It is admitted that the defendant, Mr XXXXXX XXXXX, residing at xxxxxxxxxxxxxxxxxxxxxxx is the registered keeper of the vehicle but the defendant was not the driver.

The above just makes it a bit clearer. And delete this which related to a case with two claims:

(a sum which is less than both claims).

Apart from that, I would say you have done a great job, have covered all the bases at this stage and your husband should be grateful! Read bargepole's summary of what to expect next once you have submitted this defence:

http://forums.moneysavingexpert.com/showthread.php?p=61084955

Job done, for now, once submitted! Out of interest, did you only stay minutes and leave then? Grace period applies?

Gin_and_Milk

Phew, thank goodness for that!!

Tomorrow is my first day back at work, so rather than try and phone MCOL again, I might just complete the form and print off my defence and send it off. I've read on here somewhere that registered post is not advised and that it should be first class with proof of postage.

I'm going to read bargepole's post now. There's probably no point mentioning I'll be on holiday for the next couple of weeks, but my husband will be away from the end of Nov to the middle of Dec. Do I need to mention that now or what until I hear from someone? If it does go to court, is it imperative that my husband go or can I go by myself?

Thank you so much Coupon Mad, you're an absolute star and this really is appreciated. I might actually sleep tonight now!

Gin_and_Milk

BTW I was probably there for about 40 mins. I found the ticket about 10 mins after it was slapped on my windscreen.
But who on earth plays bingo at 9.11am?!

Umkomaas

It's your husband's case - he must attend. You can go too, but not instead. Check out McKenzie Friend.

Coupon-mad

This is not something your name appears on at all and you can only attend with him, not instead of him.