Quick Question regarding PoFA compliance

KeithP

pvt wrote: »

20 February

With a Claim Issue Date of 20th February, you have until Monday 11th March to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox link from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Monday 25th March 2019 to file your Defence.

That's nearly four weeks away. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

pvt

beamerguy wrote: »

I don't think anyone here says respond with a counterclaim, you will not be on Judge Rinder

Your defence is the key to your win and then you can claim costs against them

They have 30 days to respond to a SAR

OK - Thanks to yourself and Coupon-Mad for the guidance.

So I presume there's no reason not to do the AOS straight away, then I have till 25 March to file the defence.

I'll post up my proposed defence here once I've constructed it.

Once the defence is lodged, how long is it normally before a date is set for court?

Coupon-mad

2/3 months, maybe longer.

pvt

Just drafting my defence and looking for a little help.

I've seen people referring to "forbidding signage", which I am assuming is where there is not an invitation to park, just the threat of a charge if you don't comply with the permit scheme.

Can anyone point me to a wording for this defence so I can gauge whether it suits my situation?

Once I've finished drafting my defence I'll pop it on here for comment.

Coupon-mad

Yep, search this sub-forum (NOT the whole of MSE - not the top right box!) for these keywords:

forbidding Bull defence true

and change to 'SHOW RESULTS AS POSTS' (never 'threads' or you drown!).

pvt

Be gentle - this is my first attempt at this and finding the whole thing a tad daunting.

Please advise if you think I've left out any obvious points of defence.

One point I have is that the car was not parked for more than 2-3 minutes, and therefore I content falls within the Grace Period that should be allowed by the CoP. As the Claimant hasn't provided the 'period', as PoFA requires, and as the Keeper (not the Driver) I am unable to provide a witness statement to that effect, I cannot evidence that fact. So should I be putting in a defence point putting the Claimant to strict proof that a Grace Period was allowed before the ticket was issued? Or is it just a lost point...


IN THE COUNTY COURT

CLAIM No: N0H0PE

BETWEEN:

PARKING CONTROL MANAGEMENT (UK) LIMITED (Claimant)

-and-

Little Lord Fontleroy (Defendant)

________________________________________
DEFENCE
________________________________________


1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the Defendant was the registered keeper of the vehicle, registration F123 OFF. The Defendant was not the driver of the vehicle on 31/02/2017.

3. The Particulars of Claim state that “The Claimant claims the unpaid PCN from the Defendant as the driver/keeper of the Vehicle”. This assertion indicates that the Claimant has failed to properly identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. The Claimant has claimed interest of £24.04, which is an unjustifed attempt to inflate the value of their claim. The Defendant wrote to the Claimant on receipt of the Notice to Keeper advising that their letter was not compliant with the Protection of Freedoms Act (PoFA) 2012, and that the Defendant could not decide how to deal with this matter unless the Claimant provided missing information. That information was not provided in the Claimant’s reply, or since. The delay in resolution of a further 21 months is entirely due to the Claimant’s dilatory behaviour, and the Defendant cannot be held liable for interest incurred as a result of this.

5. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

6. The signage the Claimant relies on is forbidding in character. It is submitted that if these notices are attempting to make a contractual offer, then as they are forbidding they do not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case the Claimant is not offering anything to motorists. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant.

7. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The vehicle was parked in a location that had no road markings that would indicate it was a marked bay, or area subject to a parking charge. It is further noted that within a short distance of the location the PCN was issued, that visitor parking is provided without restriction. The lack of marking and close proximity to visitor parking bays reinforces the ambiguity of the Claimant’s signage.

8. The terms on the Claimant's signs are displayed in a font which is too small to be read from a passing vehicle, and is in such a position and at a height that anyone attempting to read the small font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

9. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

10. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

11. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

pvt

<<BUMP>>


Need to file my defence by Monday - grateful for any advice that can be offered on my previous post...

Coupon-mad

One point I have is that the car was not parked for more than 2-3 minutes, and therefore I content falls within the Grace Period that should be allowed by the CoP. As the Claimant hasn't provided the 'period', as PoFA requires, and as the Keeper (not the Driver) I am unable to provide a witness statement to that effect, I cannot evidence that fact. So should I be putting in a defence point putting the Claimant to strict proof that a Grace Period was allowed before the ticket was issued? Or is it just a lost point...

Their own photos evidence only a couple of minutes parked.

You don't need to prove that (it is not your burden, it is their claim to prove), but you must state that 'the evidence shows merely that the vehicle appears to have been stopped for x minutes' then mention PCM's (well-documented in blogs) proclivity to issue predatory tickets within seconds/minutes, in breach of their ATA Code of Practice.

pvt

Thanks Coupon-mad,

I've drafted a new paragraph 5 on the basis of your helpful comments.


Any further observations or advice before I lodge it with the court?




IN THE COUNTY COURT

CLAIM No: N0H0PE

BETWEEN:

PARKING CONTROL MANAGEMENT (UK) LIMITED (Claimant)

-and-

Little Lord Fontleroy (Defendant)

________________________________________
DEFENCE
________________________________________


1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the Defendant was the registered keeper of the vehicle, registration F123 OFF. The Defendant was not the driver of the vehicle on 31/02/2017.

3. The Particulars of Claim state that “The Claimant claims the unpaid PCN from the Defendant as the driver/keeper of the Vehicle”. This assertion indicates that the Claimant has failed to properly identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

4. The Claimant has claimed interest of £24.04, which is an unjustifed attempt to inflate the value of their claim. The Defendant wrote to the Claimant on receipt of the Notice to Keeper advising that their letter was not compliant with the Protection of Freedoms Act (PoFA) 2012, and that the Defendant could not decide how to deal with this matter unless the Claimant provided missing information. That information was not provided in the Claimant’s reply, or since. The delay in resolution of a further 21 months is entirely due to the Claimant’s dilatory behaviour, and the Defendant cannot be held liable for interest incurred as a result of this.

5. In the absence of the evidence required by the PoFA 2012, the only evidence provided shows that the vehicle appears to have been stopped for a period of 2 minutes. The Claimant is put to strict proof that the vehicle was parked for a period in excess of the grace period recommended by its ATA Code of Practice. It is noted that the Claimant has a track record of court claims based on predatory ticketing where vehicles are ticketed within a very short period, in breach of its Code of Practice.

6. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

7. The signage the Claimant relies on is forbidding in character. It is submitted that if these notices are attempting to make a contractual offer, then as they are forbidding they do not fulfil the basic requirement of a contract, which is that each party to the contract must offer valuable consideration to the other party, on clear terms capable of acceptance. In this case the Claimant is not offering anything to motorists. The notices cannot, therefore, reasonably be construed as having created a contractual relationship between the Claimant and the Defendant.

8. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The vehicle was parked in a location that had no road markings that would indicate it was a marked bay, or area subject to a parking charge. It is further noted that within a short distance of the location the PCN was issued, that visitor parking is provided without restriction. The lack of marking and close proximity to visitor parking bays reinforces the ambiguity of the Claimant’s signage.

9. The terms on the Claimant's signs are displayed in a font which is too small to be read from a passing vehicle, and is in such a position and at a height that anyone attempting to read the small font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

10. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

11. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

12. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

rachity

1(1)This Schedule applies where—

(a)the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land; and

(b)those charges have not been paid in full.

“relevant obligation” means—
(a)

an obligation arising under the terms of a relevant contract; or
(b)

an obligation arising, in any circumstances where there is no relevant contract, as a result of a trespass or other tort committed by parking the vehicle on the relevant land;


“relevant contract” means a contract (including a contract arising only when the vehicle was parked on the relevant land) between the driver and a person who is—
(a)

the owner or occupier of the land; or
(b)

authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land;

“relevant land” has the meaning given by paragraph 3;


PoFA 2012 Schedule 4

There is a difference between confidential & priviliged documents.


https://ico.org.uk/media/for-organisations/documents/1624/eir_confidentiality_of_commercial_or_industrial_information.pdf