Court proceedings for auto repair visit

foofcat

Mui, the OP parked in a nearby (unrelated) p&d car park, and it was the garage who moved it to the location where it was ticketed by PCM.

Quick point of clarification in case it has any bearing, it wasn't p&d, it was car park that says free to use for 1.5 hours. (I have a picture of that sign as well just in case). It's enforced not by PCM but by CEL from what I can gather. When I left it there, it was with the strict expectation that they would move it into their garage imminently.

As I recall, they looked like they were finishing up on the cars of waiting customers - it's hazy now, but it seemed very obvious at the time that they would move it into their garage shortly.

Hoping that won't be seen as an error of judgment on my part but I really didn't think they'd leave it in the car park more than the 1.5 hours and get me a ticket....but then the ticket from parking it on the road happened.

There's also literally nowhere else to stop or park your car other than the free (time limited) car park. So to get to the garage you have to turn left from a busy road, onto the restricted road in question owned by Network Rail, enforced by PCM and covered in a "box junction" style grid from start to finish. It's a dead end so you can't get through to another road, but on the left side of the road there's the little 1.5h free car park. The garage is directly opposite it on the right side of the road.

Do I need to address this in my defence or witness statements?

foofcat

Post it here to get as much feedback as poss from the many knowledgeable forum regulars.

No need to worry about pcm seeing it, they'll see it soon enough anyway

Thanks so much. My only concern is that the time limit in which Network Rail could kick up a fuss (in a legal sense) about any alleged breaches of Byelaw14 expires shortly. Is there any chance PMC or their Solicitors could try and raise it with Network Rail before the statute of limitations kicks in? If there's no chance at all they'll see it and try to refer it to Network Rail before the 6 months is up, then I'm happy to post it and take advantage of your knowledge! I'm tempted to anyway, because I think it needs some work.

Am I being paranoid?

Coupon-mad

Yes that's paranoid.

There is NO CHANCE at all, of a PCM 'charge' morphing swiftly into a real penalty and being laid before Magistrates by Network Rail. These charges are like chalk and cheese and PCM want the money themselves.

foofcat

Hah, well when you put it like that...

in that case i'll post the defence as soon as i've anonymised it. Thanks Coupon-mad!

foofcat

As the registered keeper of the relevant vehicle, the Defendant denies liability for the entirety of the claim, for each of the following reasons:

1) The Defendant was not, and could not have been the driver during the time of the alleged contravention.

a) At the time of the alleged contravention, the Defendant was not in possession of the vehicle. The vehicle was with an auto repair garage on the day in question.

b) The Court’s attention is drawn to the distinction between the ‘registered keeper’ (‘RK’) and ‘keeper’ as defined in the Protection of Freedoms Act 2012 (‘PoFA’), Sch4, para 2 which states:

“Keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the “registered keeper.”

c) PoFA 4.1 states: ‘The Creditor has the right to recover any unpaid parking charges from the “keeper” of the vehicle.”

d) The Defendant will prove by way of a valid receipt that the garage had possession of the vehicle at the time and was thus ‘the keeper’ pursuant to PoFA, para. 2.

e) This proof removes any right to ‘presume,’ under PofA that the RK was ‘the keeper’ meaning the RK cannot be pursued even if the Claimant had complied with the Act – which is denied.

f) The Claimant is put to proof that the Defendant was driving or that the keeper (rather than registered keeper) at the time of the alleged contravention.


2) Failure to comply with the conditions of Schedule 4 of the Protection of Freedoms Act 2012.

a) Proceedings to recover the ‘unpaid parking charge’ were issued by the claimant on [DATE OF ISSUE ON CLAIM FORM].

b) In an email dated [DATE I EMAILED TRACE] – three months before the Claimant had begun proceedings – the Defendant informed the Claimant’s Agent who the driver of the vehicle was at the time of the parking event. This removed any right the Claimant had to pursue the RK under the provisions of PoFA (Sch4, para. 5).

c) In their reply dated [DATE TRACE EMAILED ME BACK], the Claimant’s Agent gave false information to the Defendant stating it was ‘too late’ to name the driver and that the Defendant could still be pursued under PoFA. The Claimant themselves stated it was ‘too late’ in a letter sent to the defendant dated [DATE PCM SAID I WAS LIABLE].

d) This deliberate misrepresentation of the Act can only be viewed as a underhanded and mischievous attempt by the Claimant and their Agent to intimidate the Defendant into paying their baseless charge.

e) The Defendant has reasonable belief that the Claimant has breached her right to data protection by passing the Defendant’s details on to Gladstones Solitors after the Defendant had already discharged liability and named the driver.

f) Such conduct by a professional parking company and serial litigant, with full knowledge of the relevant laws, is clearly vexatious and crosses the threshold for unreasonable behavior, pursuant to CPR 27.14(g).


3) Failure to comply with PoFA conditions regarding the location of the event and authority of the Claimant

a) PoFA stipulates that Sch4 only applies if the contravention took place on ‘relevant and’ pursuant to para 3.1.c of Sch4, wherein the following is not considered to be ‘relevant land’:

Any land (not falling within paragraph (a) or (b) on which the parking of a vehicle is subject to statutory control.’

b) On the road in question, there is Network Rail signage which states ‘any parking is prohibited at all times in accordance with Railway Byelaw 14.’ As Byelaw 14 applies to the entire road, the Defendant has reason to believe that the location in question does not constitute ‘relevant land.’

c) The Defendant has reasonable believe that Claimant is not the landowner – merely an agent claiming to act on behalf of the landowner. Civil proceedings in this case are moot, as it is for Network Rail (the landowner) to pursue the driver of the vehicle under Byelaw 14 within six months of the alleged contravention. The Claimant has no authority or right to issue charges on this land in their own name and they have no rights to bring this case.

d) In the absence of strict proof from the Claimant, the Defendant submits that the Claimant was unauthorised to display their signs on this road, or to pursue either the registered keeper or whoever might have been driving at the time of the alleged contravention due to the conditions set out in PoFA, Sch4, para 3.1.c.

e) The Claimant has reasonable belief that the Claimant breached the Defendant’s right to data protection by requesting details of the registered keeper of this vehicle from the DVLA in the first instance.


4) The Claimant did not have a valid contract with the driver at the time of the incident and cannot claim loss of any kind.

a) The Claimant’s sign stipulates: “No parking or waiting in this roadway, paved or yellow lined areas either wholly or partially at anytime.” The Claimant’s own sign confirms that there was no contractual permission relationship offered. Thus, there could not have been a contract – nor a breach of any such contract.

b) In B4GF26K6 PCM (UK) v Mr B, B4GF27K3 PCM (UK) v Mr W, and B4GF26K2 PCM (UK) v Ms L, the judgment concluded in para. 20 that ‘there was never any contractual relationship, whether one categorises it as a licence or simply some form of contractual permission, because that is precisely what PCM were not giving to people who parked on the roadway.’

c) This case distinguishes itself from ParkingEye v Beavis because unlike that case, the Claimant made no offer (time-limited or otherwise) for drivers to park their vehicles in the location in question. The Claimant cannot claim loss of any kind.

d) Further to this, the Claimant’s own photographs show that even with vehicles parked on both signs of the road, there was no obstruction to passing vehicles. The Claimant cannot claim loss on the basis of impediment to other vehicles.


5) Insufficiently specific and invalid Particulars of Claim.

a) The Particulars of Claim fail to fulfill CPR 16.5 because they do not include a statement of the facts on which the Claimant relies, only referring to a parking charge with few specifics and little to no description. The Particulars fail to establish a cause of action which would enable the Defendant to prepare a specific defence.

b) The Particulars of Claim do not specify whether they consider the Defendant to be the driver or simply the RK of the vehicle – note the generic usage of ‘and/or.’ As outlined above, the Defendant had already discharged liability and named the driver in accordance with PoFA before these proceedings were initiated. Had the Claimant instead pursued the correct party, the Particulars would have been able to specify whether the Claimant considers the Defendant to be the driver or the RK.

c)There is no detail about why the Claimant is pursuing this course of action against the Defendant besides a generic allegation that the Defendant ‘breached the terms of parking.’ There is no detail about which terms were breached and why.

d) The Claimant has added unrecoverable sums to the original parking charge, including an additional £60 to the original alleged charge of £100 citing ‘damages and indemnity costs ‘if applicable,’ a legal fee of £50, and interest.

e) In the absence of strict proof that such damages or indemnity costs were incurred, and in light of the above points that the Claimant was unauthorised to pursue this matter, the Defendant denies that the Claimant is entitled to any such costs.

f) It is believed that the employee who drew up the paperwork is renumerated and the Particulars of Claim are based on templates – to wit, use of terms such as ‘if applicable’ and ‘charge(s).’ It is the Defendant’s reasonable belief that the Claimant has not incurred £50 in legal fees to pursue an alleged original debt of £100. The Defendant denies the Claimant is entitled to any interest whatsoever.


6) For all the reasons outlined above the Court is invited to strike out this claim as being utterly without merit, disclosing no cause of action and having no prospect of success.


I believe the facts stated in this Defence Statement are true.

Lamilad

When the Defendant discharged liability, she provided the name of the garage but not the address because the alleged contravention took place directly outside the entrance of said garage, according to the Claimant’s own photographs

I would reword....

"When the Defendant discharged liability, she provided the name of the garage - the serviceable address for which was already known to the claimant through their own photographs [showing the vehicle parked directly in front of the garage] - and the fact it was located on the land they alleged the 'contravention' had taken place on."

foofcat

Done! Thanks, that's much better.

Lamilad

1) The Defendant was not, and could not have been the driver during the time of the alleged contravention.!On [DATE] at the time of the alleged contravention, the defendant was not in possession of the vehicle as it was with an auto repair garage on the day in question. The Defendant was unaware that a parking charge had been incurred until sometime later when she received a template letter from the Claimant alleging that the vehicle had been parked on a restricted road. Their photographs show the car directly in front of the garage in question, which is the only one on that road.!

a. The Claimant is put to proof that the Defendant was driving at the time of the alleged contravention.!

b. The Defendant will supply a receipt as part of the witness statement that confirms the car was having work done on it on the date in question.!

c. INSERT SOMETHING ABOUT WHY I IGNORED LETTERS UNTIL TRACE LETTER?!

You don't need to explain that you were unaware of the parking charge or when you became aware of it. This para needs to emphasise you were not and could not have been the driver at the time and you can prove it.

"1) The Defendant was not, and could not have been the driver at the material time.!

1.1) At the time of the alleged contravention, the defendant was not in possession of the vehicle.

1.2) The courts attention is drawn to the distinction between "registered keeper" ("RK") and "keeper" as defined in The Protection of Freedoms Act 2012, Sch 4 ("PoFA"), para 2 which states:

"keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the "registered keeper";!

1.3) PoFA 4.1 states:

"The creditor has the right to recover any unpaid parking charges from the "keeper" of the vehicle.

1.4) The defendant will prove by way of a valid receipt that the garage had possession of the vehicle at the time and was, thus, "the keeper" pursuant to PoFA, para 2.

1.5) This proof removes any right to 'presume', under PoFA, that the RK was "the keeper" meaning the RK cannot be pursued even if the claimant had complied with the Act - which is denied.

foofcat

I'm going to update the post with the full defence statement so it reflects your edits, thanks Lamilad!

EDIT: Okay it's updated now, for anyone who wants to make further suggestions

Lamilad

The Defendant had no knowledge whatsoever of which individual at the garage was driving at the time of the alleged contravention and therefore could not supply the name of any individual – only that of the garage itself. The Defendant was of the view that the name of the business in question and the fact that it is the only garage on the road where the alleged contravention took place would be sufficient for the Claimant and their tracing agents to pursue the correct party. The Defendant was of the understanding that she had discharged any liability.

Remove all of this