PCN to keeper questions

Le_Kirk

and the not a gpeol argument died a death 2 years ago with the loss of the BARRY BEAVIS case, in his case against PE as well, so no chance there

Posted by a regular on 22/10/18 which you can find by Advance Searching with GPEOL as your search term, change the POSTS radio button to THREADS

Lauybob

Le_Kirk wrote: »

Posted by a regular on 22/10/18 which you can find by Advance Searching with GPEOL as your search term, change the POSTS radio button to THREADS

Okay great. I've taken that and corrected some of the grammatical errors.

[FONT=&quot]IN THE COUNTY COURT AT CARDIFF[/FONT][FONT=&quot] [/FONT]

[FONT=&quot]CLAIM NO: XXXX[/FONT][FONT=&quot][/FONT]

[FONT=&quot] [/FONT]
[FONT=&quot]B E T W E E N:-[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]

[FONT=&quot]MILLENNIUM DOOR AND EVENT SECURITY LTD[/FONT]

[FONT=&quot]Claimant[/FONT][FONT=&quot][/FONT]

[FONT=&quot]and[/FONT]

[FONT=&quot] [/FONT]

[FONT=&quot] [/FONT]

[FONT=&quot]Mr L[/FONT][FONT=&quot][/FONT]

[FONT=&quot]Defendant[/FONT][FONT=&quot][/FONT]

[FONT=&quot] [/FONT]

[FONT=&quot] [/FONT]

[FONT=&quot] [/FONT]

[FONT=&quot]_____________________________________________________________[/FONT]

[FONT=&quot] [/FONT]

[FONT=&quot]DEFENDANT’S SKELETON ARGUMENT[/FONT]

[FONT=&quot]FOR THE FINAL HEARING XXXX[/FONT]

[FONT=&quot]1. [/FONT][FONT=&quot]This skeleton argument is to assist the Court in the above matter for the hearing dated XXXXX[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]2. [/FONT][FONT=&quot]The Claimant breached the order of XXXXX for submitting copies of documents upon which the party intends to rely on therefore the Claimant should not be allowed any relief from sanction for this breach.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]3. [/FONT][FONT=&quot]The Claimant’s witness will not attend the hearing, presenting a significant disadvantage for the Defendant.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]4. [/FONT][FONT=&quot]The witness and the accompanying witness statement is not credible as it contains invalid, false and vexatious statements which can be shown in this skeleton argument. Moreover it displays a laissez-faire attitude towards submitting a truthful, factual witness statement.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]5. [/FONT][FONT=&quot]It is the Defendants view that the witness statement provided by the Claimant is merely a ‘copy and paste’ exercise by the Claimant as there are many irrelevant points made.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]6. [/FONT][FONT=&quot]The Claimant states that ‘Residents are only permitted to park in their own allocated bay, issues have arisen in the past from residents parking their vehicles in other residents bays.’ The purpose of any parking arrangement was to prevent unauthorised/inconsiderate parking. No unauthorised parking took place as the Defendant has the right to park in the bay in this case as per the lease.[/FONT]

• [FONT=&quot]The Claimant’s accusations that the Defendant’s incompliance caused litigation is outlandish. Even if the Defendant appealed the Notice to Keeper by reason that they were not the driver, the Claimant would still have incorrectly pursued the Defendant under ‘presumption of driver’ as this is the basis of the claim.[/FONT]

[FONT=&quot] [/FONT]
[FONT=&quot]Presumption that the registered keeper was the driver[/FONT]
[FONT=&quot]8. [/FONT][FONT=&quot]In Statement 11, the Claimant presumes the Registered Keeper was the driver but it is clear in trite law that where there is no forensic and/or reliable evidence, that a registered keeper of a vehicle cannot be declared the driver at any given point in time. In fact, in some instances, they may barely drive the vehicle at all.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]9. [/FONT][FONT=&quot]The Defendant brings to the Court’s attention POPLA Lead adjudicator and Barrister Mr Henry Greenslade’s statement regarding keeper liability in the POPLA Annual Report of 2015:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]‘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’[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]10. [/FONT][FONT=&quot]District Judge Skalskyj-Reynolds in the case of Excel v Lamoureux [2016] C3DP56Q5 although only persuasive, comes to a comparable conclusion as Mr Greenslade: [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]“The defendant denies he is the driver and the claimant has absolutely no evidence that he was the driver. There is no assumption in law that the registered keeper is also the driver of the vehicle. That is trite law…” [/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]11. [/FONT][FONT=&quot]District Judge Skalskyj-Reynolds then concludes judgement by stating: [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]“The claim against Mr. Lamoureux is totally misconceived because it has no evidence that he is [/FONT][FONT=&quot][/FONT]
[FONT=&quot]the driver and it seems to be relying on some assumption that the registered keeper is the driver” [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]12. [/FONT][FONT=&quot]The Defendant (Registered Keeper) has denied that he is the driver of the vehicle and the Claimant has offered nothing in terms of proof or persuasive argument to suggest otherwise.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]13. [/FONT][FONT=&quot]The Claimant has continually failed to discharge burden of proof yet they constantly refer to the Defendant as if they know that he was the driver of the vehicle e.g. ‘the Defendant failed to display a valid permit’ (statement 4) and ‘The Defendant failed to adhere to the terms and conditions’ (statement 26) [/FONT]
[FONT=&quot]14. [/FONT][FONT=&quot]This continual presumption that the Registered Keeper was the driver is a blatant attempt to mislead the court and the fact that the Claimant relies upon Elliot v Loake [1982] renders the presumption irrelevant.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]15. [/FONT][FONT=&quot]The Claimant had no entitlement to proceed on the presumption that the keeper is also the driver. Relying on Elliot v Loake [1982] Crim. L.R. 36 is a result of misplaced understanding of the judgement and in any event, has no application to this claim [/FONT]
[FONT=&quot] [/FONT]

• [FONT=&quot]There is no suggestion from Elliot v Loake [1982] Crim L.R. 36 that a presumption existed with the registered keeper, only prima facie inference the owner was driving: [/FONT]

[FONT=&quot] [/FONT]
[FONT=&quot]“…we have a small blue sports motor-car being driven at night and a prima facie inference that it is being driven by its owner…”[/FONT][FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]17. [/FONT][FONT=&quot]The Elliot v Loake [1082] Crim L.R 36 is not a great precedent for establishing presumption that the owner/registered keeper was the driver as it concerns a criminal case where the RK lied when claiming that he had not been driving and that the accidental damage on his car was from another incident when there was forensic evidence that his car was the one involved. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]18. [/FONT][FONT=&quot]The conviction in this case was not because he was the Registered Keeper but because he lied when questioned about the incident. It was the lying that caused the conviction that he was the driver, not the fact that he was the Registered Keeper.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]19. [/FONT][FONT=&quot]None of this case therefore applies in a private parking incident as there is no evidence for the driver to lie about, nor any admission about who could/couldn’t be using the car. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Right to park and primacy of contract[/FONT]
[FONT=&quot]20. [/FONT][FONT=&quot]The Claimant states that ‘Residents are only permitted to park in their own allocated bay, issues have arisen in the past from residents parking their vehicles in other residents’ bays.’ The purpose of any parking arrangement was to prevent unauthorised/inconsiderate parking. No unauthorised parking took place as the Defendant has the right to park in the bay in this case as per the lease.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]21. [/FONT][FONT=&quot]The Claimant states that the Defendant ‘has not provided any evidence to support their alleged right to park’ (statement 16). However an email containing a copy of the lease was sent to Gladstones Solicitors on 9/05/2018 to prove that the demised space in question belonged to the Defendant [Exhibit A]. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]22. [/FONT][FONT=&quot]For the Claimant to take away or charge for that which was free (as per the lease), there must be a formal agreement. In a case similar to this:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]‘ln D7GF307F - UKCPM v Mr D - before Deputy District ludge Skelly on lst February 2018 at Clerkenwell, a similar thin excuse of an argument from a private parking firm inflicting a nuisance on residents & visitors was dismissed. When not sitting as a Judge, DDJ Skelly is a barrister specialising in property law. The managing agents were named as a party to the lease, and there was a clause which said that they could enter and make regulations for the 'efficient and proper organisation and running of the estate'. However, this could not excuse a change as intrusive and onerous as to override the grant of free resident/visitor parking, effectively restricting and charging for a right previously enjoyed, without the required consensus and deed of variation. It would be like the agents suddenly stipulating that residents had to hang a Union Jack out of the window whenever they were at home; clearly unreasonable and not in the interests of the consumer.’[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]23. [/FONT][FONT=&quot]The Defendant will rely on Jopson v Homeguard (2016) and Pace v Mr N (2016) where it was found that a parking company cannot override a tenant’s rights to park (and these include the rights of their visitors). Also Saeed v Plustrade Limited [2001] EWCA Civ 2011 in which it was held that parking restrictions and parking charges which caused detriment to tenants and their visitors was in breach of the principle that “a grantor shall not derogate from his grant” [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]24. [/FONT][FONT=&quot]The Claimant states that the Defendant ‘failed to display a valid permit at the time of the incident’. The Defendant maintains that there is NO requirement to display a permit due to the overriding right to an allocated parking spaced detailed in the lease which does NOT require or mention any need for a permit. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]25. [/FONT][FONT=&quot]The clause in the lease that provides for new regulations to be imposed between the leaseholder and landowner cannot be unilaterally interfered with by a third party. Any breach of any new regulations is a matter between the leaseholder and freeholder, nothing to do with the private parking company (Millennium Door and Event Security Ltd)[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]26. [/FONT][FONT=&quot]The only right the lease has to charge money is for the service charge/ground rent not for parking [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]27. [/FONT][FONT=&quot]Whilst the lease provides for new regulations to be imposed, there is NO provision in the lease for any separate charges to be levied (e.g. charges for failure to display a permit)[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]28. [/FONT][FONT=&quot]The Claimant states that there is a contractual agreement (signage) is agreed upon by the driver upon entering the private land. The Defendant asserts that the Claimant must demonstrate an offer, acceptance and consideration which are all required to form a contract with the driver.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]29. [/FONT][FONT=&quot]No offer could have been made of a right which the Defendant already had (to park). It is an absurd proposition that someone can put up a sign claiming to offer parking in my allocated bay, which I already have a right to park on, and then that person can rely on the sign to sue me for a breach of contract claiming that the sign supersedes my pre-existing rights. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]30. [/FONT][FONT=&quot]The signage is forbidding and not capable of forming a contract as the Claimant does not have the authority to offer parking. The Defendant maintains that no offer was made and therefore there can be no acceptance.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]31. [/FONT][FONT=&quot]There is no consideration, as it cannot be the parking for which I already have that right.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]32. [/FONT][FONT=&quot]Based on the above, the Defendant requests the court to dismiss the Claimant’s case and respectfully asks that the Court does not assist the Claimant to benefit from a wrongdoing.[/FONT]
[FONT=&quot] [/FONT]

• [FONT=&quot]The Defendant has demonstrated to the Court that the Claimant has been wholly unreasonable. It is also argued that the conduct of the Claimant cannot be overlooked and has therefore put forward a statement of costs in accordance with CPR 27.14(g) for consideration by the Court [/FONT]

[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]SERVED BY THE DEFENDANT[/FONT]
[FONT=&quot]

[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]How does it all look now?
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]So do I need to somehow prove they didn't comply with POFA? That's probably one of the only things I haven't touched upon.[/FONT]
[FONT=&quot]
[/FONT]

Coupon-mad

That's better.

But yes you must know & be able to tell the Judge, why the NTK (wording and/or date of service) and/or the lack of any one of these:

- adequate notice of the parking charge

- a relevant obligation

- a relevant contract

...means there can be no keeper liability. IF you were not driving, that is. If you were, why are you even hiding behind the POFA - not needed in a case with a strong defence point at a residential car park where you can show you have primacy of contract?

Lauybob

Coupon-mad wrote: »

That's better.

But yes you must know & be able to tell the Judge, why the NTK (wording and/or date of service) and/or the lack of any one of these:

- adequate notice of the parking charge

- a relevant obligation

- a relevant contract

...means there can be no keeper liability. IF you were not driving, that is. If you were, why are you even hiding behind the POFA - not needed in a case with a strong defence point at a residential car park where you can show you have primacy of contract?

I thought it would be better to cover 2 bases I.e if the judge rules in favour for the claimant for the POFA, the primacy of contract is something to fall back onto?

Also I’ve said in my WS that I was not the driver so I don’t think I can take out the POFA part now?

Another thing, can I add additional evidence to the skeleton I.e copy of email that I sent to GS showing that I have that right to park (when they claimed I haven’t sent them any proof)?

Thanks for your help!

Coupon-mad

I’ve said in my WS that I was not the driver

I hope that's true, as the Judge might possibly ask you.

Another thing, can I add additional evidence to the skeleton I.e copy of email that I sent to GS showing that I have that right to park (when they claimed I haven’t sent them any proof)?

Yes - not sure it will be allowed but add it anyway (with whatever attachment was with it) as the C's rep or employee would struggle to say that Gladstones (and whoever turns up is not from Gladstones) didn't receive an email if you show the sent item.

I am still not sure from what you've said, that the NTK is non-POFA, but a lack of adequate notice of the parking charge (large lettering) and/or a lack of relevant contract or relevant obligation (because your primacy of contract overrides any such terms) means the POFA has not been met anyway.

Lauybob

Coupon-mad wrote: »

I hope that's true, as the Judge might possibly ask you.


Yes - not sure it will be allowed but add it anyway (with whatever attachment was with it) as the C's rep or employee would struggle to say that Gladstones (and whoever turns up is not from Gladstones) didn't receive an email if you show the sent item.

I am still not sure from what you've said, that the NTK is non-POFA, but a lack of adequate notice of the parking charge (large lettering) and/or a lack of relevant contract or relevant obligation (because your primacy of contract overrides any such terms) means the POFA has not been met anyway.

Yeah, someone else parked my car there at the time. Would I need to prove this or will he just ask if I was the driver or not?



With regards to the NTK, I'm not 100% sure it is non-POFA (seems to be as far as I'm aware) so I guess I can say about the lack of adequate notice and lack of relevant obligation means POFA has not been met thus they cannot persue me as the keeper. Is that right?


If so I'll add that in and chuck it on here to see if its ok?


Thanks for your help

Coupon-mad

Yeah, someone else parked my car there at the time. Would I need to prove this or will he just ask if I was the driver or not?

Think about it...clearly it is in your interests to provide tangible evidence that there are other insured drivers of that car (copy of insurance?) and that should have gone with your WS with all the other evidence you wish to rely on. If you drop that ball, the Judge may not believe your hearsay and could make a finding of fact that on the balance of probabilities, YOU were the driver (then all your POFA arguments go out the window).

With regards to the NTK, I'm not 100% sure it is non-POFA (seems to be as far as I'm aware) so I guess I can say about the lack of adequate notice and lack of relevant obligation means POFA has not been met thus they cannot persue me as the keeper. Is that right?

Yes but avoiding the typo = PURSUE.

Lauybob

Coupon-mad wrote: »

Think about it...clearly it is in your interests to provide tangible evidence that there are other insured drivers of that car (copy of insurance?) and that should have gone with your WS with all the other evidence you wish to rely on. If you drop that ball, the Judge may not believe your hearsay and could make a finding of fact that on the balance of probabilities, YOU were the driver (then all your POFA arguments go out the window).

Yes but avoiding the typo = PURSUE.

I didn't actually send a copy of it with the WS I'm afraid. Will that make a difference? Could I send it now or take it with me on the day incase he asks?


Ok I'll write something up and get back to you.


Thanks a lot

Coupon-mad

You are already planning on sending stuff now, aren't you? With your skelly.

So do so (and the the other side, and print off all sent emails that PROVE all such evidence was sent in good time, to the other side).

All of this should have gone together, in a nice ring binder with all evidence numbered and a contents page so the Judge could follow it easily.

Don't hold anything to ambush them with in court. You cannot do that.

Lauybob

Coupon-mad wrote: »

You are already planning on sending stuff now, aren't you? With your skelly.

So do so (and the the other side, and print off all sent emails that PROVE all such evidence was sent in good time, to the other side).

All of this should have gone together, in a nice ring binder with all evidence numbered and a contents page so the Judge could follow it easily.

Don't hold anything to ambush them with in court. You cannot do that.

Okay great.

I have numbered the original WS and evidence that I have taken in already. So this now, Should I post the skeleton with the additional evidence (eg emails, copy of insurance etc) or take it directly to the court by hand? And what to do with the numbering etc ?