Defence Letter

MUBS54321

[FONT="&amp]Hi Coupon-mad,[/FONT]
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[/FONT] [FONT="&amp]Really appreciate your help here.[/FONT]
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[/FONT] [FONT="&amp]I've read a few more Defences and have amended as follows:[/FONT]
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1) It is admitted that the defendant, Mr XXXXXX XXXXX, DOB XXXXXX, residing at xxxxxxxxxxxxxxxxxxxxxxx is the registered keeper of the vehicle, though the claimant cannot provide evidence that the defendant was the actual driver on the dates in question. I as the defendant deny liability for the entirety of the claim.[/FONT]
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2. The incident occurred during a visit to the onsite Leisure Centre by the defendant, partner and baby and the Defendant was not the driver of the vehicle on the dates in question.

3. The Protection of Freedom Act 2012 Schedule 4 has not being complied with.
a) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under PoFA, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.
b) The keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time and with mandatory wording
c) The claimant has no right to assert that the defendant is liable based on ‘reasonable assumption’. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).[/FONT]
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4. The claimant has yet to respond to part 18 Request written and sent by the defendant and delivered to PC (NW) LTD Legal on the 14/03/2017.
a) A request to identify the party who contracted the claimant as they are not the landowner or occupier
b) A request to provide the full legal identity of the landowner or occupier
c) A request to provide a full unredacted copy of the contract with the landowner which demonstrates the claimants authority from the landowner to issue parking charges and litigate in their own name
d) A request for a copy of the original notice to keeper
e) A request to provide original and unedited photographic evidence of the purported contravention
f) A request to provide a breakdown and explanation of how the charge for the purported contravention has risen to £165.31
g) A request to provide a detailed and itemised breakdown of the losses and or damages suffered by the claimant

5. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to PCN (NW) LTD.

6. PCN (NW) LTD are not the lawful occupier of the land.
(i) a contract is absent with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from 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 locus standing to bring this case

7. If the driver happened to see the signage (if any were present) on each occasion, signs and unlit and it was foul weather creating an illegible condition to read the terms and conditions required to enter a contract. The doctrine of contra proferentem applies and the interpretation that most favours a consumer must prevail; that being that the driver(s) did not see or accept the sum the claimant says they did. The burden remains with the parking operator to ensure signs are prominent and terms/the parking charge of £60 must be in the largest lettering. No driver would agree to pay £100 to park, and there was no contract agreed.
8. The Claimant appears to have obtained the phone number of the Driver in a way contrary to the Data Protection principles, because it is known that telephone numbers are never passed on by the DVLA. Yet the Claimant pursued a practice of unwarranted harassment of the family over a period of weeks, by text message to a phone used to complain to the landowner about the unfair parking charge. The Claimant had no right to use the phone number to demand money, the number appears to have been passed around between the landowner and the operator, and this constituted harassment and caused significant distress.

9. The Protection of Freedom Act 2012 Schedule 4 has not been complied with. The registered keeper is unaware of the PCN and was not the driver, as such the keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time/with mandatory wording.

10. The POFA restricts liability to the sum of the parking charge itself. It is not believed that the Claimant has incurred additional costs - be it legal or debt collector costs - and they are put to strict proof that they have actually incurred and can lawfully add an extra £60 to each PCN and that those sums formed part of the contract in the first instance.

11. The claimant’s charges are unlawful addressing the imbalance of power leaving the driver/s at a disadvantage thus the defendant denies entering a contract.

12. The legal costs are not justified additionally it would have been factored within the additional £60 charge thus claiming again would be considered double charging creating financial gain.

The defendant denies the claim in its entirety voiding any liability to the claimant for all amounts claimed due to the aforementioned reasons.

Statement of Truth:
I confirm that the contents




Do I need to add anything further to strengthen my case? Please note that PC (NW) Ltd have replied to me at the address of my parents which I have used as my correspondence address when I appealed within the first 14 days so they have not approached the DVLA for the registered keepers address as I have not received anything from them at my home address.


Also at no pint in the appeal or in my husbands correspondence with the landowner has the drivers identity been disclosed.


Finally, is it true that the defence needs to be uploaded to PDF, emailed across to the court and this must be done before 4pm on the deadline day?


Thank you all for your continued assistance.


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Coupon-mad

Finally, is it true that the defence needs to be uploaded to PDF, emailed across to the court and this must be done before 4pm on the deadline day?

Not *must* but yes, email to the ccbcaq email, for best results unless there is time to post it.

Don't use MCOL, it de-formats defences and loses the paragraphing, not pretty when the defence is long.

I would change this bit:

7. If the driver happened to see the signage (if any were present) on each occasion, signs and unlit and it was foul weather

to this:

7. If any signs were present, they were scarce, non-prominent and unlit and it was foul weather

MUBS54321

Thanks coupon_mad

I'll get the PDF sorted and email across to the court email address tomorrow.

Do i then just wait for the claimant to respond and then get a court date?

Really appreciate your help as i was tempted to pay and throw the towel in.

Sorry to ask this again but is my defence letter good to submit in the form shown?

KeithP

As said in post#2 of the NEWBIES thread:

...numbered, double line-spaced in Times New Roman font 12.

From the same place, a sample layout:

www.dropbox.com/s/rl1e9kocnuwvjzc/Defence%20-%20VCS%20Claim.docx?dl=0

MUBS54321

Thanks Keith,

I'll amend accordingly and submit.

I guess then its waiting for the court date and moving on to the next step.

MUBS54321

Ooops....

Just realised something.

In my first appeal to the PPC, i used the template and asked the following:

1. Who is the party that contracted with your company and are they the landowner?
2. Is your charge based on damages for breach of contract? Answer yes or no.
3. Please provide photos of the signs that you say were on site, which you contend formed a contract with the driver.
4. Please provide proof that the timing of any camera or timer used was synchronised with all other cameras and/or systems & machines.

I think i have confused myself here and due to the above, i added the following to the defence letter:

4. The claimant has yet to respond to part 18 Request written and sent by the defendant and delivered to PC (NW) LTD Legal on the 14/03/2017.
a) A request to identify the party who contracted the claimant as they are not the landowner or occupier
b) A request to provide the full legal identity of the landowner or occupier
c) A request to provide a full unredacted copy of the contract with the landowner which demonstrates the claimants authority from the landowner to issue parking charges and litigate in their own name
d) A request for a copy of the original notice to keeper
e) A request to provide original and unedited photographic evidence of the purported contravention
f) A request to provide a breakdown and explanation of how the charge for the purported contravention has risen to £165.31
g) A request to provide a detailed and itemised breakdown of the losses and or damages suffered by the claimant

These are two different requests and i don't want to add paragraph 4 if i am later asked to produce the letter which was sent to the claimant.

For this reason should i omit paragraph 4? I though i was adding weight to the defence by including it but i could end up weakening my arguments.

If someone can please advise on this then i can send my final draft to PDF and then submit.

Coupon-mad

Just change it to say that you appealed on xx.xx.17 and asked for evidence (say what you asked for) and the claimant has never provided so much as a copy of the alleged contract (if true - if they've never showed you a picture of the signs).

Do i then just wait for the claimant to respond and then get a court date?

No, far from it, you need to know what happens when, so please re-read bargepole's summary in the NEWBIES thread post #2, the link about what happens when and how to complete the DQ (the next form) and who to send that to.

When we say over 99% of defended cases here win, it is true of assisted/coached cases - hundreds of them by now, but I don't include people who just grab a defence, run, miss half the court directions then come back saying it's their hearing this week! So stay with us and refer to the 'what happens when' post, to be ready and know which boxes to tick, and be ready for your Witness Statement and evidence stage before the hearing. These steps are vital.

MUBS54321

Morning and thanks, its submission day so will get this across today.


Noticed when checking through that Paragraph 12 implies multiple PCN's so can I remove or can I edit this paragraph:


12. The legal costs are not justified additionally it would have been factored within the additional £60 charge thus claiming again would be considered double charging creating financial gain.

nosferatu1001

No, it doesnt indicate multiple tickets. Double recovery is charging twice for the same item. here the only allowable legal costs are UP TO £50 for them to file the claim, yet hteyve already added £60 for legal costs. Double recovery so unrecoverable.

MUBS54321

Thanks again... and sorry for being a pain!


Educating myself on the whole process know so will research using the various forum threads