County Court claim received

Lamilad

Answer to posts #9 and #10 is yes to both. They need to be in your defence. Pofa needs to be your first point.

Coupon-mad

chambi01 wrote: »

Quick follow up question.

If I've not told Gemini Parking Solutions the driver's name, nor have I appealed to Popla, can I still use the defence below? From reading the Pofa guidelines, I don't think I can...

The identity of the driver of the vehicle on the date in question has not been ascertained.
a) The Claimant did not identify the driver
b) The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.

Of course you must! And what you tried to cut out in your post #10!

As Lamilad says, the fact the driver is not identified/Gemini's non-compliance with the POFA Schedule 4 is one of your main defence points*.

*Please don't ask in what way Gemini NTKs don't comply...you can check for yourself if you haven't already.

chambi01

Thanks for your advice. I've revised my defence as attached. Any last comments before submission would be much appreciated (line spacing has not copied over properly from Word):

Statement of Defence

I am XXXXX, defendant in this matter and deny liability for the entirety of the claim for the following
reasons:

(1).
It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

(2).
Gemini Parking Solutions are not the lawful occupier of the land. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring this case.
a) The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
b) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question.
c) The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge. I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
d) No contract has been provided showing a relationship between The Claimant and the Landowner.
e) It is submitted that the Claimant is merely an agent acting on behalf of the landowner, who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name. Even if this is produced, it is submitted that the alleged 'unauthorised' parking (denied) can only be an event falling under the tort of trespass. As was confirmed in the ParkingEye V Beavis case, ParkingEye could not have claimed any sum at all under this tort, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none).

(3).
The identity of the driver of the vehicle on the date in question has not been ascertained.
a) The Claimant did not identify the driver
b) The Defendant has no liability, as they are the Keeper of the vehicle and the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the defendant responsible for the driver’s alleged breach.
c) ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. It is submitted that the Claimant’s Parking Charge Notice and Notice to Keeper failed to comply with the statutory wording and deadlines set by the POFA and, further, that the signs failed to provide ‘adequate notice’ of any charge. Any non-compliance voids any right to ‘keeper liability’.

(4).
a) It is submitted that no contract to park existed between the Defendant and the Claimant, because the signage at the London Aquatics Centre carpark was insufficiently clear, judged by the standards laid out by the Supreme Court in ParkingEye Ltd v Beavis [2015].
b) The driver did not enter into any 'agreement on the charge', no consideration flowed between the
parties and no contract was established.
c) The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract, had the terms and conditions of the contract been properly displayed as mentioned above.
d) In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.
e) In particular there was a lack of clarity regarding what was to be considered a marked bay. The Defendant's car was parked next to a marked white line, in a position without any road cross-hatching or signage to indicate that this was not a marked bay, nor an invalid place to park.
f) Due to this lack of clarity, even if a contract is deemed to have existed between the Defendant and the Claimant, the terms and conditions of such a contract were not fair, and cannot be relied upon.
g) Even if a contract is deemed to have existed between the Defendant and the Claimant, it is submitted that the terms and conditions have not been broken, due to the above lack of clarity about marked and unmarked bays.
h) It should be noted that the correct fee was paid for parking the vehicle at the time.

(5).
a) The Claimant has submitted no evidence of the alleged violation relating to parking in an unmarked bay.
b) The Claimant has submitted no evidence of clear bay markings or road cross-hatching at the time of the incident.
c) The Claimant has failed to follow the Code of Practice (CoP) of their Trade Body, as regards clear signage and acting in a professional manner to ensure that action is not taken without any cause. The Supreme Court Judges in the Beavis case held that such a CoP is effectively 'regulation' full compliance with which is both expected and binding upon any parking operator.

(6).
a) The Claimant has at no time provided an explanation how the sum has been calculated, nor how the amount has climbed from £100 to £150. This appears to be an added cost with no qualification, and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.
b) The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

(7).
(a) The Claimant has sent threatening and misleading demands which stated that further debt recovery action would be taken to recover what is owed by passing the debt to a ‘local’ recovery agent (which suggested to the Defendant they would be calling round like bailiffs) adding further unexplained charges of £25 to the original £100 with no evidence of how this extra charge has been calculated. No figure for additional charges was 'agreed' nor could it have formed part of the alleged
'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.
b) The Defendant also disputes that the Claimant has incurred £50 solicitor costs.
c) The Defendant has the reasonable belief that the Claimant has not incurred £50 costs to pursue an
alleged £100 debt.
d) Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
e) The Claimant described the charge of £50.00 "legal fees" not "contractual costs".
CPR 27.14 does not permit these to be recovered in the Small Claims Court.
f) The Protection of Freedom Act Para 4(5) states that the maximum sum that may be
recovered from the keeper is the charge stated on the Notice to Keeper.

(8). The Defendant would like to point out that this car park can be fully distinguished from the details, facts, and location in the Beavis case. This site does not offer a free parking licence, nor is there any comparable 'legitimate interest' nor complex contractual arrangement to disengage the penalty rule, as ParkingEye did in the unique case heard by the Supreme Court in 2015. The Defendant contends the signs at London Aquatics Centre carpark are illegible with terms hidden in small print, unlike the 'clear and prominent' signs which created a contract Mr Beavis was 'bound to
have seen'.

The defendant therefore asks that the court orders the case to be struck out for want of a detailed
course of action and/or for the claim as having no prospect of success.

I believe the facts stated in this defence are true.

(Name) (Signature) (Date)

Coupon-mad

It is admitted that the Defendant was the registered keeper of the vehicle in question but this fact does not support a claim against me.

I would remove 'authorised' because a rk is a rk, and add the bit shown.

And I would swap #2 with #3 because the POFA flows better after saying you are the keeper.

Lamilad

put spaces between paragraphs and sub paragraphs to avoid the 'wall of text' thing you've got going on

chambi01

Great, thanks a lot CouponMad and Lamilad - I'll send this off now.

chambi01

Hi
In reply to my witness statement I received the attached from Gemini Parking 'Solutions', within 2 weeks of the court date - I'm not sure if that's a relevant point.
I'd really appreciate any light that can be shed on the points of law they raise, also whether the notices look sufficient from a Beavis standpoint.

In summary:
- they raise Elliott v Loake 1983 to presume the identity of the driver as the registered keeper, and otherwise to use Schedule 4 (4) (1) of POFA to do so
- that they sent the relevant notice required by the act and that I failed to nominate the driver, as required under the act
- that the signs on the land are clear and unambiguous. I obviously dispute this, and their photos of the sign would support this in my view judged by Beavis standards
- they raise VCS v HMRC (2013) in which the judge held that the making of a congtract should not be confused with the power to perform it
- other points contained in the links in detail


https://drive.google.com/open?id=0B78F-89mtlWVLWNOUVhOVDNDaEE
https://drive.google.com/open?id=0B78F-89mtlWVTXBmbUxOdUdaRTQ
https://drive.google.com/open?id=0B78F-89mtlWVcWlZSjMyb3AweVk

https://drive.google.com/open?id=0B78F-89mtlWVT3BaaWplY21WbUk
https://drive.google.com/open?id=0B78F-89mtlWVRGhVYU5zbnN1SFk

Coupon-mad

Sounds like a template WS, I have had no time to look today.

Sounds very familiar. Look at the way Matthew87 dealt with a similar WS, and how others have debunked Elliott v Loake, dozens of times (search the forum).

The_Deep

they raise Elliott v Loake 1983 to presume the identity of the driver points contained in the links in detail

Shot themselves in the foot there.


that the signs on the land are clear and unambiguous


That surely is for a judge to decide

-that they sent the relevant notice required by the act and that I failed to nominate the driver, as required under the act

Which act is that? I would not like to put money on them winning this one.


-

System

Have they provided a clear pic of the terms on the signs or are they relying on that fuzzy one plus a "copy" of the terms they say were there on the day.

Even the fuzzy one shows the terms to be indecipherable. Challenge it.