Smart Parking PCN

skin1290

Hi all, please can you take a look at the reply to the LBCCC below and let me know if this would be ok to send.

I deny any debt to Smart Parking Ltd.

The driver is not identified in your letter and your client has failed to meet the requirements of The Protection of Freedoms Act, schedule 4 to pursue me as keeper.
As the registered keeper of the vehicle I have not received a Notice to Keeper. As you can see, the law is unequivocal on this matter. A Notice to Keeper must be served where the driver has not been identified. Without this, the creditor does not have the right to recover the charge from the keeper of the vehicle.
As there has been no admission regarding who was driving the vehicle and no evidence of this has been provided, the Private Parking Operator has failed to comply with the keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012.

Paragraph 4 of The Act states that!

(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.!
(2)The right under this paragraph applies only if— (a) the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met
The condition specified in paragraph 6 “is that the creditor (or a person acting for or on behalf of the creditor)—!
(a) has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or!
(b) has given a notice to keeper in accordance with paragraph 9.”!
Paragraph 9 states this notice to keeper must be given within a "period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given"
It would be unreasonable of Smart Parking to rely on the assumption that the Registered Keeper was the driver (as in Elliot v Loake) which I would like to highlight was a criminal case with ample evidence against the driver.

Your Letter Before Claim refers to "a number of letters" sent to me by your Client - however I am now informing you that I was not in receipt of these items of correspondence and was therefore unable to act upon them at the time. Please provide copies of all documentation and correspondence, along with proof of dates of postage.

When these are supplied, please also confirm whether the intended action is founded on a contractual charge, a breach of a contract or trespass
Please confirm that your client's contract with the land-holder includes specific authority to take legal action and that this will be produced for the court.

Whilst I await your timely response, I would also like to remind you of the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA.
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.!

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 Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''


I would like to remind both Smart Parking Ltd and SCS Law that a PCN with the basic non-statutory wording that your client freely chooses to use, can only hold the driver liable. Kindly show me your client's evidence of who the driver was and I will be able to pass the matter to them.!
When I receive the documents and your explanations I will be in a position to make a more detailed response. It would be unreasonable to proceed with litigation before you have clarified your client's cause of action.

I look forward to your response

Yours Faithfully,

Coupon-mad

Yes that's fine, send it. And if you do get a claim don't panic, this is entirely defendable.

beamerguy

As an addon, (not for including in the above), I just wonder
why SCS Law are copying BWLegal in their stupidity.
Are they not aware that Smart are simply scammers who
were chucked out of Asda and other places

Are SCS Law not aware that Smart were done for data protection contravention

Smart Parking settle out of court for data protection contravention

http://parking-prankster.blogspot.co.uk/2016/11/smart-parking-settle-out-of-court-for.html

Are SCS Law about to be whooped in court just like BWLegal