Gladstones court letter parking on double yellow lines

DoaM

Was there a windscreen ticket when the vehicle was parked at that address?

Even if so, anything sent to the RK must be sent to the address provided by the DVLA when the PPC requested keeper details.

Sb1971

There was no windscreen ticket and the court summons was certainly not addressed to the RK address although the original letters were! Is this a defence in itself?

Coupon-mad

Shome mistake here, shirley?

the vehicle was insured with Carrot Insurance with 1 named drivers permitted to use it.

5. It is denied that the Defendant was the driver of the vehicle.

[Deleted User]

A precedent is like fire - a Good slave, but a bad master.

Read the template, understand it and !!!!!! do amend it to ensure it fits the circumstances.

You cannot deny driving if you were in fact the driver. That's an offence far more serious than a parking ticket! The defence as drafted is either wrong or admits the car was moved whilst apparently uninsured. Not good.

Sb1971

I guess i was thinking about abut the keeper plus 1 named driver so in total there were 2 named drivers. Sorry my mistake.

Sb1971

Sorry Johnersh - entirely my mistake, the keeper plus 1 named driver was insured therefore two. I was thinking of 1 in addition to the main driver.

Thanks for you time

Coupon-mad

OK, good, that's cleared that bit up! Change it to read ''two named drivers''.

You have missed out the Jopson Appeal case, and the Saeed v Plustrade case, both of which are vital exhibits in this sort of residential defence. You've based your defence on Johnersh's example, but lost that chunk and IMHO you need it.

And I think you need to work this bit in (below) to call into question why letters have been sent to a random address which isn't the keeper's address. How did they get wrong address data for the keeper; when they are pursuing the keeper of a car a PPC should use either the address from the DVLA or the address the appellant might update in any appeal, and neither is the case so put the Claimant to strict proof of their facts and data use, and re-state which address is the correct one for exchange of N180, and later, witness statements & evidence.

The car driver was the resident at the rented accommodation but the vehicle is was registered elsewhere. I have no idea how Gladstones have found the rented accommodation address.

The claim is addressed to the keeper but not at the address where the vehicle is registered. We have no idea how the data has changed and have certainly not provided any information to debt collectors.

Sb1971

Thank you Coupon Mad, I think i'm there at last. I have to submit the defence today, shown below.
The changes made
1. Changing to 2 named drivers
2. Adding in the missing point 6 to 7 regarding the Jopson appeal case.
3. Adding in point 12 regarding not using the registered keeper address.

DEFENCE

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark AE03HZH which is the subject of these proceedings. The vehicle was insured with Carrot Insurance with two named drivers permitted to use it.

4. It is admitted that on 16/01/2017 the Defendant's vehicle was parked at St. Georges Close.

5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Claimant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.

5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

Authority to Park and Primacy of Contract
6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

7. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. there was any obligation (at all) to display a permit; and
7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

Alternative Claim - Failure to set out clearly parking terms
8. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her primary defence above, inadequate.
8.1.1. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation;
8.1.2. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee’s ("IPC") Accredited Operators Scheme, an organisation to which the Claimant was a signatory; and
8.1.3. The signage contained particularly onerous terms not sufficiently drawn to the attention of the visitor as set out in the leading judgment of Denning MR in J Spurling v Bradshaw [1956] EWCA Civ 3
8.2. The Defendant avers that the residential site that is the subject of these proceedings is not a site where there is a commercial value to be protected. The Claimant has not suffered loss or pecuniary disadvantage. The penalty charge is, accordingly, unconscionable in this context, with ParkingEye distinguished.

9. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

10. It is denied that the Claimant has any entitlement to the sums sought.

11. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.
12. How did the claimant obtain the wrong address data for the keeper; when the claimant is pursuing the keeper of a car a PPC should use either the address from the DVLA or the address the appellant might update in any appeal, and neither is the case so I ask the Claimant to strict proof of their facts and data use, and the correct address for exchange of N180, and later, witness statements & evidence is 17 Brunel Road, High Wycombe HP13 5SR.

STATEMENT OF TRUTH
I confirm that the contents of the Defence are true.

KeithP

Sb1971 wrote: »

5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Claimant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

Shouldn't that read "The Defendant avers that the Claimant is therefore limited to pursuing the Defendant..."

Sb1971

Thank you Keith P - amended